United States v. Ventura-Cruel

United States Court of Appeals
For the First Circuit

No. 02-1538

UNITED STATES OF AMERICA,

Appellee,

v.

IGNACIO VENTURA-CRUEL

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge,

Baldock,* Senior Circuit Judge, and

Howard, Circuit Judge.

G. Richard Strafer, with whom G. Richard Strafer, P.A., was on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney and Sonia I. Torres-Pabón,
Assistant United States Attorney, Chief, Criminal Division, were on
brief, for appellee.

December 22, 2003

*Of the Tenth Circuit, sitting by designation.
 HOWARD, Circuit Judge. Defendant-appellant Ignacio

Ventura-Cruel appeals from his convictions for participating in a

cocaine conspiracy. To resolve this appeal, we must consider

whether, in the circumstances of this case, the district court

lacked the authority to reject Ventura-Cruel's guilty plea and

whether admissions that he made in a letter of confession written

pursuant to his plea agreement were properly admitted against him

at trial. On this second issue, we vacate the convictions and

remand for a new trial.

I. Background

On December 30, 1998, a grand jury returned a four-count

indictment against numerous defendants describing an alleged

cocaine smuggling and distribution conspiracy operating out of

Puerto Rico. The indictment charged Ventura-Cruel with two counts,

participating in a conspiracy to possess with the intent to

distribute cocaine, see 21 U.S.C. § 846, and possessing with intent

to distribute cocaine, see 21 U.S.C. § 841(a)(1). The government

included in the indictment a compilation of overt acts which

evidenced the existence of the conspiracy. Concerning Ventura-

Cruel, the indictment alleged that on April 23, 1998, at the behest

of other conspiracy members, he traveled to an airport in St.

Thomas, U.S. Virgin Islands with $4,000 and a "travel ticket" to

deliver to Juan Carlos Pion, one of the leaders of the conspiracy.

-2-
However, "due to operational difficulties," he was unable to make

the delivery.

On the morning of February 7, 2000, the day his trial was

scheduled to begin, Ventura-Cruel reached a plea bargain with the

government. Under the agreement, Ventura-Cruel agreed to plead

guilty to the first count of the indictment. The government in

turn agreed that it would move to dismiss the second count. The

government also agreed that it would provide the court with a

sentencing recommendation of fifty-four months of incarceration if

Ventura-Cruel qualified for a reduction under the safety-valve.

See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.1

As an addendum to the agreement, Ventura-Cruel admitted

certain facts demonstrating his involvement in the conspiracy. The

addendum contained the same facts that were alleged in the

indictment. On the same afternoon that Ventura-Cruel accepted the

plea bargain, he appeared before the district court for a change of

plea hearing. At that hearing, the court conducted the colloquy

mandated by Fed. R. Crim. P. 11. The court reviewed the terms of

the plea agreement with Ventura-Cruel. It stressed to him that the

1
The "safety valve" permits a court to sentence a first-time
offender to less than a mandatory minimum sentence if the defendant
demonstrates compliance with several requirements. See United
States v. Matos, 328 F.3d 34, 36 (1st Cir. 2003). The requirement
most relevant to this appeal is that the defendant must provide the
government with all the information he has "concerning the offense
or offenses that were part of the same course of conduct or a
common scheme or plan." Id.

-3-
agreement did not bind the court to impose the sentence recommended

by the government. It then proceeded to describe the rights that

Ventura-Cruel would relinquish by accepting the plea bargain and to

question him to assure that his waiver of these rights was knowing

and voluntary. Following this discussion, the court summarized the

facts in the addendum, and the government described the facts that

it would have proved if there had been a trial. Ventura-Cruel

acknowledged that these facts accurately summarized his involvement

in the conspiracy. At that point, the court ruled that "a basis in

fact for the plea exists, and therefore, a judgment of guilty shall

be entered as to count one." The court then concluded the hearing

by requesting the preparation of a presentence report and by

scheduling a sentencing hearing. The sentencing hearing was

scheduled for June 23, 2000.

A few weeks after the change of plea hearing, beginning

on February 25, 2000, Ventura-Cruel met for several debriefings

with Special Agents Jose Roman and Aramis Quinones of the Drug

Enforcement Agency (the "DEA").2 The purpose of the debriefings

was for Ventura-Cruel to provide the government with the

information that he possessed about the conspiracy so that he could

qualify for the safety-valve reduction.

2
Additional communications between Ventura-Cruel and the DEA
agents took place on March 9, 2000, March 7, 2000, and March 13,
2000.

-4-
 At the sentencing hearing, on June 23, 2000, the

government opposed Ventura-Cruel's eligibility for the safety-valve

reduction because, in its estimation, Ventura-Cruel had not been

truthful in the debriefings. Based on the government's

representation, the district court decided that it could not

pronounce sentence until it determined if, in fact, Ventura-Cruel

was eligible for the safety-valve reduction.3

On February 12, 2001, the district court convened an

evidentiary hearing to consider Ventura-Cruel's safety-valve

eligibility. Ventura-Cruel maintained the burden of proving that

he had been completely forthcoming. See United States v. Marquez,

280 F.3d 19, 23 (1st Cir. 2002). To meet this burden, he

introduced the DEA agents' report memorializing the debriefing

conversations. The government responded by introducing the

testimony of Agent Roman. Agent Roman testified that Ventura-Cruel

told him that when he brought the $4,000 to Pion, "he didn't have

any knowledge they [sic] were involved in drug trafficking." Agent

Roman also testified that Ventura-Cruel told him that "he has never

been involved in drug trafficking, what he did [on April 23, 1998]

was a favor for a friend," and that he was unaware that Pion was

involved in drug smuggling until the date of his arrest.

3
The court, not the government, decides if a defendant
qualifies for the safety-valve reduction. See United States v.
White, 119 F.3d 70, 72 (1st Cir. 1997).

-5-
 The government also offered the testimony of DEA Agent

Hector Colon, another agent involved in the investigation of the

conspiracy. Agent Colon testified that he had interviewed Pion as

part of his investigation, and that Pion had stated that Ventura-

Cruel was extensively involved in the conspiracy. Pion also stated

that Ventura-Cruel had provided the vessels used for the drug

smuggling. During the examination of Agent Colon, the government

asked whether there was evidence showing that Ventura-Cruel was a

drug smuggler just like Pion. The defense counsel immediately

objected to the question, stating "the evidence is that he is not."

The district court understood the defense counsel's

objection to be an assertion that Ventura-Cruel was not involved in

drug smuggling. Combining this understanding with Agent Roman's

earlier testimony that Ventura-Cruel had claimed not to know that

he was involved in a drug conspiracy, the court determined that

there was no longer a factual basis for accepting Ventura-Cruel's

guilty plea. The court, by its own motion, withdrew "the plea of

guilty entered by [the defendant because it could not] allow him to

retain a plea of guilty when he didn't know that what was going on

were drugs."

After rejecting the plea, the district court reinstated

the indictment against Ventura-Cruel and set a trial date. The

evidence introduced at trial showed that Ventura-Cruel was an

active participant in the drug conspiracy headed by Pion. Ventura-

-6-
Cruel's role was to organize the maritime transport of the drugs

from Colombia to St. Croix, St. Thomas or St. Maarten for storage.

Once the drugs were stored on of one these islands, Ventura-Cruel

coordinated with Pion to transport the drugs to Puerto Rico. The

government relied primarily on testimony from Miguel Couvertier, a

paid informant, and Ruben Gomez, one of Ventura-Cruel's co-

conspirators, who testified pursuant to a cooperation provision in

his plea agreement. In addition to this testimony, the government

called Alma Martinez, Ventura-Cruel's probation officer. Through

this witness, the government introduced a letter which Ventura-

Cruel had written implicating himself in the conspiracy. The jury

convicted Ventura-Cruel on both counts. The district court

subsequently sentenced Ventura-Cruel to life in prison, and he

timely appealed.

II. Discussion

We address two primary issues. First, we consider

whether the district court maintained authority under the Rules of

Criminal Procedure to reject Ventura-Cruel's guilty plea after

having accepted it over a year earlier. Second, we consider

whether the district court erred by admitting at trial the letter

that Ventura-Cruel wrote to his probation officer confessing his

involvement in the conspiracy.

A. Authority to Reject Ventura-Cruel's Guilty Plea

Ventura-Cruel claims that the district court acted

-7-
without authority in rejecting his guilty plea after having

previously accepted it. Specifically, he claims that Fed. R. Crim.

P. 11 did not provide the district court with the power to reject

his plea.4

It is well settled that a defendant does not have an

absolute right to plead guilty. Santobello v. New York, 404 U.S.

257, 262 (1971). The Supreme Court has stressed that the plea

"phase of the process of criminal justice, and the adjudicative

element inherent in accepting a plea of guilty, must be attended by

safeguards to insure the defendant what is reasonably due in the

circumstances." Id. Rule 11 provides a defendant with these

essential safeguards.

Before accepting a guilty plea, the district court must

address the defendant personally to assure that he understands,

inter alia, the charge against him, the possible punishment, that

he has a right to an attorney, that he has the right to plead not

guilty, that he has a right to a jury trial, and that if he pleads

guilty, he waives the right to a trial. Fed. R. Crim. P. 11(c).

In addition, the district court must determine that the defendant's

plea is voluntary and not the result of force, threats, or

promises. Fed. R. Crim. P. 11(d).

4
Ventura-Cruel has argued on appeal only that the district
court did not have the power to reject his plea. He has not argued
that, even if the court had such power, its exercise of that power
was an abuse of discretion.

-8-
 Under Rule 11, the district court must also determine

whether there is a factual basis for the defendant's guilty plea.

Fed. R. Crim. P. 11(f). The purpose of this requirement is to

"protect a defendant who is in the position of pleading voluntarily

with an understanding of the nature of the charge but without

realizing that his conduct does not actually fall within the

charge." Advisory Committee Notes to the 1966 Amendment to Fed. R.

Crim P. 11. Rule 11(f) provides that:

Notwithstanding the acceptance of the
plea of guilty, the court should not
enter a judgment upon such a plea without
making such inquiry as shall satisfy it
there is a factual basis for the plea.5

This rule provides the district court with continuing authority.

As the plain language suggests, the "district court's obligations

under Rule 11(f) continue until it has entered judgment." United

States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998). Thus, the rule

"permits the court to retrospectively reject the plea, after

originally accepting it." 24 Moore's Federal Practice, §

611.08[2][b] (3d ed. 2003); see 8 Charles Alan Wright, Federal

Practice & Procedure Criminal, § 174 at 207 (3d ed. 1999) ("If a

plea has been accepted and the court should later decide that it is

not satisfied that there was a factual basis for the plea, it should

5
Rule 11 was amended in December 2002. Former Rule 11(f) has
been recodified as Rule 11(b)(3) and now states, "Before entering
judgment on a guilty plea, the court must determine that there is
a factual basis for the plea." The Advisory Committee Notes to the
2002 Amendment state that this change is only "stylistic."

-9-
vacate the plea and then enter a plea of not guilty on behalf of the

defendant."); see also Smith, 160 F.3d at 121 (noting that if the

court decides that "there was no factual basis for a guilty plea

after accepting it, the court should vacate the plea and enter a

plea of not guilty on behalf of the defendant"). In this regard,

the Advisory Committee Notes to the 1966 Amendment to Rule 11 state

that the "normal consequences of a determination that there is not

a factual basis for the plea would be for the court to set aside the

plea and enter a plea of not guilty."

As the rule makes clear, however, the district court's

authority to reject a plea under Rule 11(f) is finite; it terminates

when the court enters judgment. Rule 32(d)(1) states, "a judgment

of conviction must set forth the plea; the verdict or findings; the

adjudication; and the sentence." (emphasis supplied).6 Thus, in a

criminal matter, "a court must impose sentence before a judgment of

conviction can issue." Mitchell v. United States, 526 U.S. 314, 337

(1999). Accordingly, the factual predicate for the guilty plea must

exist not only at the time that the court initially accepts the

plea, but also when it imposes sentence. See United States v.

Bennett, 291 F.3d 888, 894 (6th Cir. 2002); see also Howard v.

United States, 135 F.3d 506, 509 (7th Cir. 1998) ("any finding of

an adequate factual basis at the initial plea hearing is necessarily

6
As a result of the December 2002 amendments to the Rules of
Criminal Procedure, Rule 32(d)(1) has been recodified as Rule
32(k). Its language remains the same.

-10-
preliminary"), cert. denied, 525 U.S. 832 (1998).

Here, the district court initially accepted Ventura-

Cruel's guilty plea after determining that there was a factual basis

for his plea at the change of plea hearing on February 7, 2000.

However, at the safety-valve hearing on February 12, 2001, the court

heard evidence that subsequent to the change of plea hearing

Ventura-Cruel claimed that he did not know that he was part of a

drug conspiracy at the time that he committed the acts in

furtherance of the conspiracy. Because a defendant must know that

his conduct was part of a drug conspiracy in order to be guilty

under 21 U.S.C. § 846, see United States v. Nelson-Rodriguez, 319

F.3d 12, 27-28 (1st Cir. 2003), cert. denied, -- U.S. --, 123 S.Ct.

2589 (2003), the court concluded that it could not accept Ventura-

Cruel's guilty plea. Since the district court rejected the guilty

plea prior to entering judgment, the court acted within its

authority under Rule 11(f).7

Ventura-Cruel relies on several cases in which this

Circuit and others have held that a district court exceeds its

authority under Rule 11 by rejecting a guilty plea subsequent to

7
We recognize that the district court stated that it was
entering judgment on Ventura-Cruel's plea after initially accepting
it at the change of plea hearing. However, the court could not
enter judgment at that juncture because it had not yet pronounced
sentence. See Fed. R. Crim. P. 32(d)(1). While the district court
misstated that it was entering judgment by accepting the plea,
consistent with Rule 32(d)(1), the docket does not indicate that
the clerk entered judgment at that time. See id. (judgment must be
signed by the judge and entered by the clerk).

-11-
having accepted it. See United States v. Cruz, 709 F.2d 111 (1st

Cir. 1983); accord United States v. Ritsema, 89 F.3d 392 (7th Cir.

1996); United States v. Skidmore, 998 F.2d 372 (6th Cir. 1993);

United States v. Partida-Parra, 859 F.2d 629 (9th Cir. 1988); United

States v. Blackwell, 694 F.2d 1325 (D.C. Cir. 1982). But in each

case, the district court vacated the defendant's guilty plea for a

reason other than that the plea lacked a factual foundation. See

Ritsema, 89 F.3d at 396 (reversing district court's vacatur of plea

because it thought mandated sentence in plea agreement was too

lenient); Skidmore, 998 F.2d at 374-75 (reversing district court's

modification of plea agreement to excuse defendants from asset

forfeiture provision because court deemed provision unfair);

Partida-Parra, 859 F.2d at 631 (reversing district court's vacatur

of plea because plea agreement contained "clerical error"); Cruz,

709 F.2d at 112 (reversing district court's vacatur of plea because

mandated sentence in plea agreement was inconsistent with sentences

received by co-defendants); Blackwell, 694 F.2d at 1336 (reversing

district court's vacatur of plea after defendant ignored

admonishment that if she testified in favor of co-defendant it would

vacate plea). Because none of these cases involved a court

rejecting a plea because it lacked a factual predicate, the court's

authority to reject a plea under Rule 11(f) was not implicated.

The Ninth Circuit explained the scope of the district

court's Rule 11(f) authority in Partida-Parra, 859 F.2d at 631.

-12-
There, the court noted that a district court generally may not

accept a guilty plea and then subsequently reject it. Id. However,

it observed that Rule 11(f) provides an exception to this general

rule: Rule 11(f) "implies that acceptance of a guilty plea does not

foreclose a subsequent rejection of the plea if factual questions

emerge, for instance at sentencing." Id. That is exactly the

circumstance here. During the sentencing process, the district

court heard evidence that convinced it that there was no longer a

factual basis to support Ventura-Cruel's guilty plea. It therefore

rejected the guilty plea and entered a plea of not guilty in accord

with Rule 11(f). See Smith, 160 F.3d at 121.8

8
Ventura-Cruel, relying on Cruz, 709 F.2d at 114, claims that
the district court's rejection of his plea also violated the Double
Jeopardy Clause. See U.S. Const. Amend. V. In light of the
Supreme Court's decision in Ohio v. Johnson, 467 U.S. 493 (1984),
the Double Jeopardy analysis in Cruz is no longer valid. See
United States v. Kurkculer, 918 F.2d 295, 301 n.9 (1st Cir. 1990);
United States v. Santiago Soto, 825 F.2d 616, 620 (1st Cir. 1987);
accord Ritsema, 89 F.3d at 399 n.6; United States v. Foy, 28 F.3d
464, 471 n.13 (5th Cir. 1994). As a fallback, Ventura-Cruel,
citing Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001), contends
that the Double Jeopardy Clause nevertheless applies because the
plea was "unconditionally accepted" and the "defendant was
adjudicated guilty" by the district court. This contention is
based on a faulty predicate. As discussed above, the district
court's initial acceptance of Ventura-Cruel's plea was necessarily
conditional because the court maintained authority under Rule 11(f)
to vacate the plea until it entered judgment. See Howard, 135 F.3d
at 509.

Ventura-Cruel also claims that his trial counsel provided
ineffective assistance because he failed to alert the court that it
acted without authority by rejecting his guilty plea. Our
conclusion that the district court acted within its authority
effectively disposes of this claim. See Acha v. United States, 910
F.2d 28, 32 (1st Cir. 1990) (failure to raise meritless legal

-13-
 B. Admission of Ventura-Cruel's Confession

Ventura-Cruel's second claim is that the district court

erred by admitting into evidence, at his subsequent trial, the

letter confessing guilt which he wrote to his probation officer as

part of the presentencing process initiated after the court had

accepted his guilty plea. He claims that the court's decision to

admit the letter violated principles of basic fairness guaranteed

by due process because he tendered this confession under a belief

that he was not protected by the privilege against self-

incrimination.

Ventura-Cruel's plea agreement provided that he could

receive a reduction in his sentence for acceptance of

responsibility, see U.S.S.G. § 3E1.1. To receive such a reduction,

the agreement required Ventura-Cruel to "accept full responsibility

for the offense committed." It also provided that he could receive

an additional reduction under the "safety-valve" provision, see

U.S.S.G. § 5C1.2, if he provided "truthful and complete information

and evidence to the United States" about his crime and related

events. At the change of plea hearing, the district court explained

to Ventura-Cruel these sentencing provisions and that by pleading

guilty he was waiving his privilege against self-incrimination.

Faced with the requirement that he provide incriminating

argument cannot constitute ineffective assistance of counsel);
United States v. Victoria, 876 F.2d 1009, 1012-13 (1st Cir. 1989)
(same).

-14-
information to receive a shorter sentence and a belief that he was

no longer protected against self-incrimination, Ventura-Cruel

authored a letter of confession on May 23, 2000, to his probation

officer.9 The letter stated:

The first thing I want to tell you is that I
accept full responsibility for what I have
done in this case. During the early evening
of April 23, 1998, I delivered some
electronic equipment, a plane ticket, and
$4,000 to a man in the airport in the St.
Thomas, VI. This man was working for Juan
Carlos Pion and was going to travel to St.
Maarten. After this delivery, I received a
call to pick up these items, since the trip
to St. Maarten had been canceled. This
electronic equipment was eventually seized
during arrests that were made in July of
1998 for cocaine trafficking.

I do not blame anyone but myself for my
activity in this case. I was wrong and I
suffer every day for the mistakes that I
have made in this case . . . What I did in
this case goes against everything I believe
in. I promise that I will never violate the
law again. I am very, very sorry for what
I have done. I look forward to the time
when this problem is behind me, but the pain
in my heart for what I have done will never
leave me.

The district court vacated Ventura-Cruel's guilty plea several

months after he wrote this letter.

9
Ventura-Cruel wrote the letter after the probation officer
told defense counsel that a written statement admitting
responsibility would suffice to establish Ventura-Cruel's
eligibility for the acceptance of responsibility reduction. Thus,
Ventura-Cruel offered this confession to comply with the mechanism
established by his plea agreement for receiving a shorter sentence.

-15-
 Ventura-Cruel moved to exclude the letter from his

trial, but the district court denied his motion and admitted it

over his objection. The court admitted the letter because it

concluded that the rules of evidence only prohibited the

introduction of statements made by a defendant as part of the plea

negotiation process. See Fed. R. Evid. 410. In the court's view,

the fact that Ventura-Cruel confessed after the plea negotiations

had concluded rendered the letter admissible.

The admission of Ventura-Cruel's confession in these

circumstances was erroneous. In similar circumstances, the Ninth

Circuit reversed a conviction because it deemed that admitting the

defendant's confession was fundamentally unfair. See United

States v. Escamilla, 975 F.2d 568 (9th Cir. 1992). In Escamilla,

the defendant made incriminating statements as required by his

plea agreement. Id. at 570. The plea agreement also required the

defendant to take a polygraph test. Id. When the defendant

failed the polygraph, the government withdrew from the agreement

but used the defendant's incriminating statements against him at

trial. Id. The court held that the trial court had erred by

admitting the confession because "of the fundamental unfairness of

allowing the government to keep the benefit of its bargain while

denying [the defendant] his." Id. at 572. It concluded that the

"only way to return the parties to the status quo ante is to bar

the government from using [the defendant's] confession against him

-16-
at trial." Escamilla, 975 F.2d at 571; see Hawkins v. Hannigan,

185 F.3d 1146, 1156-57 (10th Cir. 1999) (holding that it was

fundamentally unfair and violation of privilege against self-

incrimination to introduce incriminating statements made by

defendant in reliance on subsequently withdrawn plea bargain);

Gunsby v. Wainwright, 596 F.2d 654, 656-658 (5th Cir. 1979)

(holding that statement made pursuant to plea bargain which was

later withdrawn by the government was inadmissible at subsequent

trial because it violated self-incrimination privilege); People v.

Jones, 331 N.W.2d 406, 408-10 (Mich. 1982) (vacating conviction

because trial court improperly admitted statement made by

defendant pursuant to subsequently withdrawn plea bargain); State

v. Nelson, 33 P.3d 419, 422 (Wash. App. Ct. 2001) (holding that

statement made by defendant in reliance on withdrawn plea

agreement was inadmissible at subsequent trial); see also 5

LaFave, Israel, & King, Criminal Procedure § 21.5(f) at 220-21 (2d

ed. 1999) (stating that where accepted plea is later overturned,

incriminating statements made by defendant in reliance on plea

agreement should be excluded from defendant's subsequent trial).10

We agree with the results reached in these cases,

although in our view it is enough that the use of such statements

10
We note that different considerations may come into play if
the defendant withdraws his guilty plea or the defendant breaches
the plea agreement. See 5 LaFave, Israel, & King, supra, at 221;
see also United States v. Stirling, 571 F.2d 708, 732 (2d Cir.
1978).

-17-
is unfair under the circumstances, and we need not reach the

constitutional grounds relied on by some of these cases. Ventura-

Cruel believed, with reason, that the court had approved his plea

and plea bargain. The plea agreement encouraged Ventura-Cruel to

make incriminating statements in order to receive a shorter

sentence. In light of these incentives, Ventura-Cruel offered such

statements. He was then deprived of the benefit of his plea

bargain but the government was permitted to use his statements made

in reliance on the bargain against him at his subsequent trial.

This was error. The parties should have been returned to their

positions before the district court initially accepted Ventura-

Cruel's guilty plea on February 7, 2000. Part of this return to

the status quo ante should have included preventing the

introduction of Ventura-Cruel's confession at trial.11

The government contends that, even if the confession was

improperly admitted, it was only a harmless error because of the

overwhelming evidence against Ventura-Cruel. For an erroneous

evidentiary admission to be harmless, we must conclude that it was

"highly probable" that the result would have been the same if the

11
Ventura-Cruel's plea agreement did not contain a provision
permitting the use of his admissions if the plea was subsequently
overturned or one of the parties withdrew from the agreement. See
United States v. Morsley, 64 F.3d 907, 918 (4th Cir. 1995)
(allowing confession made by defendant to be admitted in subsequent
trial where plea agreement stated that defendant's statements would
be admissible if defendant withdrew from agreement).

-18-
disputed evidence had been excluded.12 See United States v.

Vigneau, 187 F.3d 82, 86 (1st Cir. 1999). The burden of persuasion

rests with the government to demonstrate harmless error. See

United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998).

The government introduced Ventura-Cruel's confession as

part of its case-in-chief through the testimony of his probation

officer. The government then highlighted the confession to the

jury in its closing argument. In referring to the letter, the

government argued:

There is no doubt that this is his signature
. . . a letter . . . that speaks louder than
any evidence in this case, a letter that way
back in the year 2000 was drafted for only one
purpose . . . to get a three level reduction
for acceptance of responsibility . . . I accept
that I did what I did. I accept [that] I am
guilty, I accept that this is what I have done,
I did participate in this case. Just take a
look at the very first sentence. The first
thing I want to tell you is that I accept full
responsibility for what I have done in this
case. I do not blame anyone. No one, ladies
and gentleman, no one . . . I do not blame
anyone but myself for my activity in this case.
What is the case then that he participated in
a conspiracy to possess in excess of 150
kilograms.

12
The harmless error standard for errors that are
constitutional in nature is more stringent. It requires that the
error be deemed harmless beyond a reasonable doubt. See United
States v. Innamorati, 996 F.2d 456, 475 (1st Cir. 1993). The
government has failed to argue which standard applies here.
However, even under the "highly probable" standard (which is more
favorable to the government), the error, as discussed infra, cannot
be deemed harmless. See Vigneau, 187 F.3d at 86.

-19-
 "Confessions are by nature highly probative and likely to

be at the center of the jury's attention." United States v. Leon-

Delfis, 203 F.3d 103, 112 (1st Cir. 2000). This is especially so

where the government emphasizes the confession in its closing

argument because these are "the last words spoken to the jury by

the trial attorneys." United States v. Manning, 23 F.3d 570, 575

(1st Cir. 1994). Moreover, the thrust of the government's case, in

addition to the improperly admitted confession, consisted of

testimony from a paid informant and from a co-conspirator

testifying pursuant to a plea agreement, in the hope of receiving

a lighter sentence because of his cooperation. Ventura-Cruel

argues that both of these witnesses were motivated to provide

testimony favorable to the government and therefore their testimony

raises questions of credibility which militate against finding an

erroneous evidentiary admission harmless.

The government contends that a conviction may be

"sufficient" even where the government relies on the testimony of

co-conspirators. This argument misses the point. The question

here is not whether a conviction based on the testimony of co-

conspirators may be sustained as minimally sufficient. The

question instead is whether, after a review of the entire record,

we are convinced that it is "highly probable" that the jury would

have reached the same conclusion without the confession. Vigneau,

187 F.3d at 86; Shea, 159 F.3d at 40. Where the government

-20-
claimed, in its closing argument, that the confession spoke "louder

than any evidence in the case" and the other damaging evidence

consisted of testimony from witnesses who may have had reason to

fabricate or embellish their testimony, see Coppola v. Powell, 878

F.2d 1562, 1571 (1st Cir. 1989), we cannot conclude that the

admission of Ventura-Cruel's confession was a harmless error.13

III. Conclusion

For the reasons stated above, we affirm the district

court's order rejecting Ventura-Cruel's guilty plea but vacate the

convictions and remand for a new trial.

So ordered.

13
Because of our determination that the erroneous evidentiary
ruling entitles Ventura-Cruel to a new trial, we do not reach his
final contention that the district court erroneously declined to
provide a "multiple conspiracy" jury instruction.

-21-