United States Court of Appeals
For the First Circuit
No. 02-1205
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ PADILLA-GALARZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and DiClerico,* District Judge.
Juan Ortiz-Lebrón, by appointment of the court, for appellant.
Marcos E. López, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant
United States Attorney, Chief, Criminal Division, were on brief for
appellee.
December 12, 2003
*
Of the District of New Hampshire, sitting by designation.
BOUDIN, Chief Judge. Jose Padilla-Galarza pled guilty in
the district court in Puerto Rico to a drug trafficking crime
pursuant to a plea agreement. After the plea but before sentence,
Padilla sought unsuccessfully to withdraw his plea. On this
appeal, he challenges the decision rejecting his motion to
withdraw; he also contests the lawfulness of a sentencing condition
imposed by the district court.
Padilla, a former police officer, was indicted in 1999
for conspiring to possess cocaine with intent to distribute (count
I) and for aiding and abetting the other members of the conspiracy
to possess cocaine with intent to distribute (count II). 21 U.S.C.
§ 841(a)(1) (2000); 18 U.S.C. § 2 (2000). The indictment made
clear that the government proposed to attribute to him in excess of
5 kilograms of cocaine, which would trigger a statutory 10-year
minimum sentence. 21 U.S.C. § 841(b)(1)(A) (2000). A further
count (count III) sought criminal forfeiture of property acquired
through drug proceeds, specifically naming an apartment that
Padilla had purchased in Isla Verde in San Juan. 21 U.S.C. §
853(a)(1)-(2) (2000).
The government's version of the facts, which Padilla
later adopted, are that during the summer of 1995, Padilla was part
of a drug conspiracy involving the shipment of cocaine to the New
York area, that he assisted others in preparing a shipment in
Puerto Rico, that he participated in the theft of a part of the
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shipment, that he himself received several kilos which he then
distributed, and that a portion of the proceeds were used to buy an
apartment in Isla Verde.
On September 11, 2000, about a year after his indictment
and arrest, Padilla–-then represented by counsel Marlene Aponte–-
entered into a detailed plea agreement with the government. By the
agreement, Padilla admitted to the facts just described and agreed
to plead to the second and third counts of the complaint. The
government agreed to drop the first count and to stipulate with
Padilla that he would be held accountable for between 3.5 and 5
kilograms; and the parties further agreed to specific guideline
calculations and to a sentence of 60-months' imprisonment which
fell within the calculated guideline range.
The agreement was designated as one under Federal Rule of
Criminal Procedure 11(e)(1)(c),1 so that the judge if he accepted
the agreement was acquiescing in the sentence. Conversely, if the
judge chose not to sentence in accordance with the stipulated
sentence, Padilla had the right to withdraw the plea. On the same
day, the court conducted a plea hearing, at which Padilla was
informed of the charges, agreed to the facts alleged by the
government, was apprised again of the 60-month sentence
1
The Federal Rules of Criminal Procedure were amended in 2002,
and Rule 11(e) became, with minor changes not relevant to this
appeal, Rule 11(c).
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contemplated by the agreement, and listened to the recitation of
rights waived by forgoing a trial.
There were a few wrinkles. Padilla, although he had
signed the agreement conceding the government's version of the
facts and pled guilty to counts II and III, said no more about them
at the hearing than he agreed that the government could "probably"
prove the facts. On one or two occasions, Aponte answered
questions arguably addressed by the court to Padilla himself. Most
important to this appeal, some confusion attended the discussion of
two topics-–the possibility of Padilla serving some of his sentence
under the so-called boot camp regime and the forfeiture of the
apartment–-to which we will return.
Padilla was returned to prison to await sentencing, and
Aponte visited him there on November 21, 2000. According to her
motion to withdraw filed the following day, Padilla behaved in a
distraught manner, said that at least one of the witnesses against
him had lied, threatened and insulted Aponte, and insisted that he
wanted to go to trial. At about the same time, Padilla filed a pro
se motion to withdraw his guilty plea. In December 2000, the
district court appointed new counsel and referred the motion to
withdraw the plea to a magistrate judge who held a hearing in May
2001 at which Padilla was the only witness.
Padilla claimed at the hearing that he had only cursorily
reviewed the agreement and been told by Aponte that he should trust
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her, that she had written replies for him to make to the court, and
that she had misled him about the boot camp program and about the
forfeiture in respects described below. He also said that,
contrary to his statements to the court at the plea hearing, he had
been depressed at the time of the hearing, had not been taking
anti-depressants that had been prescribed for him, and was upset by
his impending divorce. He said that an "overwhelming amount of
exculpatory" evidence–-never described in detail-–had been kept
from him by Aponte.
The magistrate judge, while saying that the motion was
not frivolous, nevertheless recommended that the motion be denied.
The report said that the plea had been voluntary and not coerced
and that Padilla (who had extensive experience as a policeman) had
understood the charges and knowingly and intelligently acquiesced
in the bargain. The magistrate judge said that the boot camp issue
was peripheral and within the ultimate control of the Bureau of
Prisons. The report also discussed briefly, and without
endorsement, Padilla's basis for his present claim of innocence.
Padilla filed objections to the report.
Thereafter, the district court denied the motion to
withdraw the plea and sentenced Padilla to the 60-month term of
imprisonment specified in the original agreement. As to boot camp,
the judge recommended that Padilla be admitted to the program when
he had served enough of his sentence to become eligible. The court
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also imposed a 48-month term of supervised release following
imprisonment, adding as a condition that:
The defendant shall submit his person,
residence, office or vehicle to a search,
conducted by a United States Probation Officer
at a reasonable time and in a reasonable
manner, based upon reasonable suspicion of
contraband or evidence of a violation of a
condition of release; failure to submit to a
search may be grounds for revocation; the
defendant shall warn any other residents that
the premises may be subject to searches
pursuant to this condition.
This appeal followed.
The major issue is the denial of the motion for
withdrawal of the guilty plea. The district court may allow
withdrawal for "a fair and just reason," Fed. R. Crim. P.
11(d)(2)(B),2 but the case law suggests that among the relevant
factors are whether the plea was voluntary, intelligent, knowing
and complied with Rule 11; the force of the reasons offered by the
defendant; whether there is a serious claim of actual innocence;
the timing of the motion; and any countervailing prejudice to the
government if the defendant is allowed to withdraw his plea.
United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997).
2
At the time it was filed, Padilla's motion was governed by
Federal Rule of Criminal Procedure 32(e). As part of the 2002
amendments, see note 1, supra, that section was relocated as Rule
11(e), but without any substantive change pertinent to this case.
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The customary standards of review apply but a good deal of
discretion is accorded to the district court. Id. at 348.3
We begin with the questions whether Padilla pled guilty
intelligently, knowingly and voluntarily and whether the court
adequately observed the formalities imposed by Rule 11, which are
intended to assure that the defendant understands the charge and
the consequences of the plea. United States v. Cotal-Crespo, 47
F.3d 1, 4 (1st Cir. 1995), cert. denied 516 U.S. 827 (1995).
Padilla's current claim that he did not carefully review the
written document and that his counsel coached him as to the
responses is not by itself enough to show that the plea was
uninformed. Padilla assured the court at the time of the plea that
he had reviewed the agreement and the government's appended version
of the facts and discussed it with counsel.
Ordinarily, a defendant is stuck with the representations
that he himself makes in open court at the time of the plea. See
United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984). They are
more likely to be reliable than later versions prompted by second
thoughts, and guilty pleas--often in the defendant's interest–-
3
Abstract questions of law are reviewed de novo, findings of
raw fact are tested for clear error, and law application and
balancing judgments are usually reviewed for reasonableness, e.g.,
Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002); the
degree of deference may vary, Sierra Fria Corp. v. Donald J. Evans,
P.C., 127 F.3d 175, 181 (1st Cir. 1997), and there are a few flat
exceptions to deference. Ornelas v. United States, 517 U.S. 690,
698-99 (1996).
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could hardly be managed any other way. Further, the main terms of
the agreement were spelled out by the judge and prosecutor in open
court, and the government's version of the facts was read aloud.
The Rule 11 colloquy was not perfect-–few are unless the
judge works mechanically from a script-–but the flaws were minor
and do not undermine the rule's core objectives. See Cotal-Crespo
47 F.3d at 4-5. True, the court did not spell out the abstract
elements of the offense, compare Fed. R. Crim. P. 11(b)(1)(G), but
neither is drug trafficking an obscure crime to a policeman. See
Cotal-Crespo, 47 F.3d at 5-6 ("complexity of the charges" and
"capacity of the defendant" relevant). And while counsel should
not have answered once or twice for her client, Padilla's own
answers were adequate.
Some trial judges might have pursued the term "probably"
in Padilla's concession of what the government could prove, but he
had signed an unqualified admission of the crime and pled to it in
open court. If a defendant believes he is guilty, he may plead
guilty because he thinks the government can "probably" prove his
guilt. The Alford issue–-that of a defendant who wants to plead
guilty while denying that he actually committed the crime-–involves
quite different concerns. See North Carolina v. Alford, 400 U.S.
25, 37-38 (1970).
Even now, Padilla's brief offers no straightforward and
plausible claim of actual innocence, cf. United States v. Ramos,
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810 F.2d 308, 313 (1st Cir. 1987), and Padilla's suggestions in his
withdrawal motion of powerful exculpatory evidence have not been
developed on this appeal. In this court, when Padilla sought yet
another counsel after the briefing, we told him he could submit a
pro se supplemental brief. None has been forthcoming and, while he
has complained of lack of access to his papers, he should by now
have been able to address any evidence pointing to his innocence.
There remains the possibility that Padilla was suffering
from some serious emotional or mental impairment at the time of the
plea. It appears that he misled the district judge in saying that
he had never had any treatment for such a condition, and Aponte
said based on his behavior at the prison that at that time she
deemed him irrational. For obvious reasons, this is one of the
subjects where the defendant's own assurances in open court at the
time of the plea may be given less weight if later evidence to the
contrary emerges.
But at the plea hearing Aponte said that she had no
concern about Padilla's condition and the magistrate judge, who
watched Padilla testify not long afterward, found him articulate
and in command of himself. Padilla's new counsel at the hearing
was free to call Aponte, or a psychiatrist, or both, but did not do
so. The burden is upon Padilla, as the one attacking the plea, to
show the circumstances justifying relief from the plea, United
States v. De Alba Pagan, 33 F.3d 125, 127 (1st Cir. 1994), and he
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has done no more on the issue of capacity than raise limited
doubts.
Padilla's most concrete suggestions that the plea was not
an intelligent one concern the issues of boot camp and forfeiture.
To these we now turn, adding the detail earlier omitted. As to
both issues, the record confirms that there was some confusion at
the time of the plea and both issues have been of continuing
concern to Padilla. We conclude, however, that in each case the
confusion did not prejudice Padilla's legitimate expectations. See
Cotal-Crespo, 47 F.3d at 5.
As to the boot camp issue, the plea agreement provided
that the government "will not oppose [Padilla's] request that he
participate[] in the shock incarceration program (commonly known as
the "boot camp") and will leave the sentence to the sound
discretion of the Court." The boot camp program, which combines
strict discipline and job training, is authorized by statute, 18
U.S.C. § 4046 (2000), and where the six month in-prison component
is successfully completed, can result in a further six months'
reduction in sentence. 28 C.F.R. § 524.32(d)(3) (2003). The
Bureau of Prisons decides who may participate but a recommendation
by the judge is given weight. U.S.S.G. § 5F1.7, p.s., & cmt.
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(1998); Federal Bureau of Prisons, U.S. Department of Justice,
Program Statement No. 5390.08 at 6 (Nov. 4, 1999).4
At the plea hearing, the court quoted the boot camp
provision and asked whether "you" will leave this matter to the
discretion of the court? Padilla's counsel, perhaps
misunderstanding who "you" referred to, said "we understand" and no
more was said about the subject at the plea. Thereafter, Padilla
apparently became persuaded that he was never eligible for the
program at all and urged this as a reason for permitting the
withdrawal of his plea.
On appeal, Padilla argues that he had a disciplinary mark
against him at the facility where he was being held, that this was
incurred prior to the plea agreement, and that Aponte should have
known about it and known also that this would disqualify Padilla
from the boot camp program. A mistaken belief by Padilla that he
could be a candidate for the boot camp program, if indirectly
fostered by the plea agreement and the trial judge, might be
relevant–-though not necessarily decisive–-in weighing his request
to withdraw the plea. But no evidence is before us that a
disciplinary mark against Padilla at the prison where he was
4
The program is available for several categories of
defendants including those serving sentences between 30 and 60
months who are within 24 months of their projected release date.
28 C.F.R. § 524.31(a)(1)(ii) (2003). Thus, Padilla if sentenced
under the agreement would be a candidate, although no more than
that, for the program.
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temporarily being held would disqualify him from later
participation in the boot camp program.
By contrast, there was confusion about the forfeiture
issue. The government's version of the facts in the plea agreement
said that Padilla used a portion of the proceeds from the drugs he
and others stole from the cocaine shipment "to purchase the La
Mancha apartment in Isla Verde." Although Padilla had signed the
plea agreement incorporating this admission, at the plea hearing
Aponte herself raised the subject when the judge asked whether
Padilla was content with the agreement:
We have explained to our client and he
has expressed one small--for purposes of
clarity of the proceedings and for his behalf-
-I will request permission from the Court to
address it on the record--my client expressed
the doubt since he had forfeiture found of an
apartment that's not in his name, that is in a
third person's--third party's name, and in
which he purchased with a power of attorney on
behalf of his brother, I explained to him that
by pleading guilty to the forfeiture count,
since he has always stated that the apartment
is not his, that actually he would be
relinquishing the right to contest that
forfeiture since he does not have any interest
in the apartment.
He, nevertheless, would have no
standing to contest it anyway. He asserts
it's not his. So the only net effect that
this plea agreement would have is that he
agrees under the terms of the plea agreement
not to contest the criminal forfeiture in this
case in which he appears to have in that
count, and that doesn't bind--the Government
has to go against the other parties.
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The judge then endorsed the view that standing to contest
the forfeiture lay with the party claiming ownership and asked, "Do
you have any doubts as to that now?" Aponte, who may have thought
this addressed to her, said "no" and Padilla said nothing. Later
in the plea hearing Padilla agreed that he was pleading guilty to
counts II and III, and in a brief colloquy Padilla seemed to concur
with the judge's statement that he was admitting that he had
obtained the apartment with drug money.
Padilla's argument on appeal concerning the forfeiture is
not straightforward. The main suggestion is that Padilla never
admitted purchasing the apartment with drug money but was dissuaded
from saying so in court by the earlier colloquy between counsel and
the judge concerning standing. But Padilla did admit purchasing
the apartment with drug money three times: once by signing the plea
agreement, once by pleading guilty to count III, and once in
response to the judge's inquiry after he said the government could
"probably" prove those facts.
Padilla was surely confused about something: Aponte's
comments in court did not come out of thin air, and her later
confrontation with Padilla at the prison seems to have been
prompted in part by Padilla's belief that his plea would facilitate
the forfeiture. According to the government's charge, it appears
that Padilla had purchased the apartment in the name of his brother
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and hoped to resist its forfeiture--on what basis is unclear even
now.
In his brief on appeal, Padilla's counsel suggests that
his client has maintained "[t]hroughout" that "he did not own the
La Mancha apartment." But this is not a denial that he bought it
in his brother's name with drug money-–apparently the government's
position–-so there is no necessary conflict between this contention
and Padilla's plea and admissions at the plea hearing already
described. Even now, there is nothing to suggest that Padilla has
any basis for denying the government's version.
We add that the district judge was correct insofar as he
led Padilla to believe that the forfeiture was primarily a matter
between the government and the current named owner of the
apartment. That owner is free to dispute that the apartment was
purchased with drug money or to offer any version of events that
could militate against forfeiture of that owner's interest. 21
U.S.C. § 853(n) (2000). The only one who has effectively given
away any defense against forfeiture is Padilla who, according to
his present brief, does not claim to own the apartment.
Padilla was represented at the plea hearing by one
counsel and in the withdrawal request by another. His present
appellate counsel suggests that both of these lawyers provided
inadequate representation to Padilla in a variety of respects.
Such claims are rarely considered on direct appeal because almost
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always they require factual development available primarily through
post-conviction remedies, see United States v. Mala, 7 F.3d 1058,
1063 (1st Cir. 1993), cert. denied 511 U.S. 1086 (1994);
importantly, it is very rare that one can condemn counsel as
incompetent without knowing why counsel made the choice under
attack. See Marrero-Rivera, 124 F.3d at 353.
There are occasional exceptions where the facts are fully
developed on direct appeal, see, e.g., United States v. Austin, 948
F.2d 783, 785 (1st Cir. 1991), or the choice one that no reasoning
could support, see U.S. v. McKenna, 327 F.3d 830, 845 (9th Cir.
2003), cert. denied 124 S. Ct. 359 (2003), but nothing like that is
remotely present in this case. The government apparently had co-
conspirator witnesses available to testify against Padilla so
Aponte may well have secured for Padilla a sentence half or less of
what he would otherwise likely have suffered. He can pursue his
competence claims in the conventional way.
The last issue in the case relates solely to the
sentence. Padilla claims that one of the conditions of his
supervised release is vague, arbitrary, and unconstitutional.
Because Padilla did not object to this special condition at
sentencing, our review is limited to a search for "plain error."
United States v. Phaneuf, 91 F.3d 255, 262 (1st Cir. 1996).
The condition in question is described in the judgment
against Padilla as follows:
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The defendant shall submit his person,
residence, office or vehicle to a search,
conducted by a United States Probation Officer
at a reasonable time and in a reasonable
manner, based upon reasonable suspicion of
contraband or evidence of a violation of a
condition of release; failure to submit to a
search may be grounds for revocation; the
defendant shall warn any other residents that
the premises may be subject to searches
pursuant to this condition. (emphasis added).
At Padilla's sentencing hearing, the district court used slightly
different language: "The Defendant shall warn any other residents
at a premises [sic] that they may be subjected to a search pursuant
to this condition." On appeal, Padilla argues that the condition
implies that probation officers will be allowed to search the
person of anybody they find on the "premises" described and that
Padilla is obligated to inform guests and visitors of this
possibility.
We need not concern ourselves with the enduring question
whether the spoken or written judgment has priority, see, e.g.,
U.S. v. Sines, 303 F.3d 793, 799-800 (7th Cir. 2002), because it is
clear to us in context that Padilla's premises, not the people
themselves other than Padilla, are the subject of the possible
search and required warning. Since Padilla's constitutional
objection is premised on the right of visitors not to be searched
pursuant to the condition, this clarification of the judgment
resolves the issue.
Affirmed.
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