United States Court of Appeals
For the First Circuit
No. 05-1202
UNITED STATES OF AMERICA,
Appellee,
v.
JOHAN TORRES-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Rafael F. Castro-Lang for appellant.
Nathan J. Schulte, Assistant United States Attorney, for
appellee. H.S. García, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Senior Appellate Attorney,
on brief for appellee.
May 8, 2006
BOUDIN, Chief Judge. Johan Torres-Rosario ("Torres") was
indicted on August 28, 2003, for conspiracy to distribute
controlled substances in an amount that carries a maximum term of
life imprisonment. 21 U.S.C. §§ 841(a)(1), 846 (2000). He pled
guilty under a plea agreement pointing to a minimum guideline
sentence of 188 months, then sought unsuccessfully to withdraw his
plea, and now appeals from his conviction and 188-month sentence.
The background events are as follows. Torres surrendered
on March 29, 2004, and was held without bail. Beginning in May
2004, Torres' counsel and the Assistant United States Attorney
("AUSA") began discussing the possibility of a plea agreement; for
a considerable period, an offer by the government of 11 years'
imprisonment was on the table but was never accepted by Torres.
The critical events involve the period of September 2
through September 10, 2004, with Torres' trial scheduled to begin
on Monday, September 13, 2004. Seemingly (the chronology is not
perfectly clear), Torres and his trial counsel (he is represented
on appeal by a different attorney) met with the AUSA on Thursday,
September 2; on Thursday, September 9, there was another meeting of
the AUSA and counsel; whether Torres was present is unclear (the
government says yes and he says no).
During the September 2 meeting, according to Torres, the
AUSA stated, "on my children, if you go to trial, I'm going to give
you life, if you don't sign today, for each day that goes by, I'll
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[sic] will give you two more years." Torres refused the 11-year
offer but on Thursday September 9 the AUSA disclosed the names of
four government witnesses to Torres' counsel. That night, Torres
called his lawyer and asked him to make a deal.
On September 10, 2004--the Friday before the trial date--
Torres, who knew only that he had asked his lawyer to make a deal,
was brought unexpectedly to the courthouse where his lawyer
presented him with a plea agreement modeled on one that had been
offered the preceding May; but the amount of drugs stipulated,
together with firearms and leadership enhancements previously
proposed, would lead to a minimum guideline sentence of 15 years
and 8 months, which the government said it would recommend.
Torres now says that he was extremely reluctant to sign
but his lawyer pressed him hard, saying: "sign, sign, sign."
Torres says that in substance he spent only 15 minutes with his
lawyer considering the proposed deal--including translation of the
terms of the agreement and whatever discussion took place--before
he accepted the terms proposed and was taken before a magistrate
judge who (on consent) conducted the Rule 11 hearing and then
recommended acceptance of the agreement.
According to Torres, on the same evening (September 10),
he had second thoughts and sought to contact his lawyer in order to
withdraw the plea. A formal motion for withdrawal of the plea was
not filed until September 21, 2004, apparently because the district
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court was closed for some of the intervening time due to a
hurricane that hit Puerto Rico. In the motion, Torres' counsel
justified his request on the ground that Torres had only 15 minutes
in which to understand the plea agreement and agree to accept it;
apparently by coincidence the district court accepted the
magistrate judge's recommendation on the same day, perhaps without
knowing of the motion.
On November 8, 2004, the district court denied Torres'
motion to withdraw the plea. On November 17, 2004, Torres filed
two pro se submissions with the district court, advising the court
for the first time of the alleged threat by the AUSA and of his own
counsel's advice to "sign, sign, sign." Torres also said that his
own counsel had failed to describe the AUSA's conduct in the
initial motion to withdraw the plea, even though Torres wanted him
to do so.
Torres' counsel separately filed a motion for
reconsideration of the denial, again arguing that 15 minutes was
insufficient time for Torres to comprehend the plea. The district
court denied both motions. Just prior to his sentencing hearing
Torres submitted a third pro se motion requesting permission to
withdraw his plea, repeating and elaborating on earlier claims,
further criticizing his own counsel, and also stating that he had
asked his counsel to withdraw from representing him.
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At sentencing, the district court conducted an
abbreviated hearing on the plea withdrawal question, allowing
Torres to state his reasons for requesting withdrawal and inviting
counsel for both Torres and the government to present arguments.
After hearing these statements, the district court again denied the
motion to withdraw the plea and sentenced Torres, consistent with
the plea agreement, to 188 months in prison.
On this appeal, represented by new counsel, Torres
presents two claims: first, that his original counsel did not
properly represent him and, because of a conflict of interest,
should have withdrawn from the case; and second, that the district
court should have allowed Torres to withdraw his plea. The former
claim requires a motion under 28 U.S.C. § 2255 (2000); the harder
issue is whether Torres should be afforded a full-scale evidentiary
hearing as to the plea withdrawal issue.
Torres' first claim rests upon the Sixth Amendment right
to assistance of counsel, U.S. Const. amend. VI, but it is not the
usual claim that Torres' original counsel bungled the defense--for
example by ignoring a meritorious defense or urging Torres to agree
to an unsound plea or misconducting the trial. Such a claim,
usually hard to sustain, would require Torres to show that
counsel's advice was manifestly incompetent and that the
incompetence had probably altered the outcome. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
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Instead, Torres says that during the plea withdrawal
phase, trial counsel labored under an actual conflict of interest
with his client. Such a showing, also resting upon Sixth Amendment
case law, is sometimes called a "per se" violation of the Sixth
Amendment. United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st
Cir. 1994); see also Cuyler v. Sullivan, 446 U.S. 335, 349-50
(1980). What that phrase means is that Torres, if he showed such
a conflict, arguably would be entitled to relief based on an
assumption of prejudice or, more exactly, without the need to prove
prejudice. Cuyler, 446 U.S. at 349-50.
That is the rub. Sixth Amendment attacks on counsel are
rarely allowed on direct appeal because they require findings as
to what happened and, as important, why counsel acted as he did--
information rarely developed in the existing record. So, the
defendant is usually remitted to a petition under section 2255.
Still, relief can be granted on appeal if the facts are undisputed,
sometimes feasible where an actual conflict is claimed. Soldevila-
Lopez, 17 F.3d at 486.
In this case no actual conflict of interest could be
found "on the undisputed facts." True, Torres asserted in the
district court and on this appeal that his counsel failed to
protect him against abusive conduct by the AUSA and, instead,
pressed him unduly to sign the agreement. This, it is suggested,
gave his own trial counsel a conflicting interest to suppress or
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ignore information that could have helped Torres win his motion to
withdraw his plea.
Yet at this stage we have only Torres' word as to what
occurred and no explanation from counsel as to either his version
of these events or why he made the choices he did. Torres says
that his counsel did not "protect" him from improper threats. But
the pressure applied by the prosecutor--if we assume Torres'
version of the threat is conceded by the government's
silence–although perhaps distasteful would not show wrongdoing.
See Bordenkircher v. Hayes, 434 U.S. 357, 358-64 (1978). Nor is it
clear what counsel could have done to "protect" Torres.
The hard reality is that plea bargaining in criminal
cases is not for the delicate minded. Most prosecutors, we think,
would avoid, for multiple reasons (including the prospect of
appeals like this one), so striking a calibration of the
consequences of delay and so severe a threat (if this is what
happened). Yet the government's costs rise as trial approaches and
the best deal from the prosecutor is ordinarily available before
the investment in final trial preparations.
Torres' claim of conflict does not depend on showing that
the AUSA misbehaved. He says that his counsel failed to include
mention of the AUSA's threat in counsel's motion or reconsideration
request, even though Torres so requested and even though most
lawyers would probably think it useful context to support the later
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plea withdrawal motion. It would be enough to show that his own
counsel had a significant interest in concealing information that
would assist his client.
But there is no obvious reason why trial counsel would
have any interest in concealing wrongdoing by the prosecutor, nor
would he have much reason to conceal the fact--even if we assume
Torres' version to be correct--that he strongly encouraged ("sign,
sign, sign") his client to accept the agreement. Of course,
counsel might exert undue pressure and wish to conceal that; but
"sign, sign, sign" is not improper and might well have been very
wise advice.
The only puzzle is why trial counsel's motion to withdraw
did not mention the vivid threat by the prosecutor. But this may
have been a tactical judgment or difference in perception. In all
events, trial counsel's explanation is not available to us, which
is why section 2255 is generally the proper avenue for competence
claims--even ones far more promising than the conflict of interest
claim in this case appears to be.
Torres notes that his trial counsel requested leave, and
was allowed, to withdraw after the sentencing hearing on the ground
that "the allegations made by Mr. Torres during the sentencing
hearing [ ] created a conflict." But by this time Torres had begun
to criticize his own counsel's performance with a vigor that could
have made future representation uncomfortable, requests of counsel
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to withdraw after sentencing are quite common, and counsel's
statement at this stage does not show an actual conflict of
interest during the plea or during the pre-sentence request to
withdraw the plea.
We turn, then, to the question whether the district judge
erred in refusing to allow the plea to be withdrawn. Where a
defendant seeks to withdraw a plea after its acceptance but before
sentencing, he must show a "fair and just" reason, Fed. R. Crim. P.
11(d)(2)(B), relevant factors being the force of the reasons given
for the request, its timing, any assertion of actual innocence,
indications that the plea was less than fully informed and
voluntary, and possible prejudice to the government. United States
v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994).
Review of a denial of such a motion is for abuse of
discretion. Parilla-Tirado, 22 F.3d at 371. Although older case
law endorses a liberal approach to pre-sentence plea withdrawals,
United States v. Ramos, 810 F.2d 308, 311 (1st Cir. 1987), it is
questionable how far this view has survived the pressure of growing
dockets and an increasing appreciation of the grim dynamics of plea
bargaining, including the prevalence of "buyer's remorse" among
those who have pled. Cf. United States v. Mescual-Cruz, 387 F.3d
1, 6 (1st Cir. 2004), cert. denied, 543 U.S. 1175 (2005).
In the present case, the arguments for allowing the plea
withdrawal are perhaps stronger than usual but the inferences are
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quite mixed. In Torres' favor are the facts that he almost
immediately sought to withdraw the plea even though circumstances
beyond his control delayed the message, that the government pressed
him very hard to plead, and that he seemingly felt pressured even
by his own lawyer. Nor is it clear that the government's case
would have been impaired by the brief delay if Torres had been
allowed immediately to withdraw the plea and then gone to trial.
Yet Torres does not claim actual innocence, let alone
suggest any basis for such a claim. His main disputes are as to
the amount of drugs (he agreed to 15-50 kilos of cocaine), whether
firearms are attributable to him (he agreed), and his status as a
leader or organizer (he agreed). Whether he has a serious basis
for disagreeing on any of these points is unclear; nor did the
prosecutor have to agree to anything less as part of a bargain.1
Also equivocal is the fact, much stressed in Torres'
brief, that he was given only 15 minutes in which to have the plea
agreement translated to Spanish, read and digest its contents, and
decide whether or not to take the plea. Torres says that this
rendered the plea involuntary, but this argument is complicated by
yet other facts. One is the history of Torres' prior discussions
1
Torres also claims that he misunderstood that he was agreeing
to forfeit his wife's interest in their house as well as his own.
The plea agreement makes clear his agreeing to the latter; it is
confusing as to the former but it is doubtful that anything Torres
did say in the agreement could affect her rights nor does he
provide any specifics.
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with the government; the other is the subsequent plea colloquy at
the Rule 11 hearing.
The government fairly notes that plea negotiations had
begun several months before and that the main term of the plea
agreement that Torres needed to consider was the sentence.2 In a
letter dated May 17, 2004, the government offered (and Torres then
rejected) an outline of a plea agreement containing substantially
the same terms (firearms and role enhancement) as the final plea
agreement--save that the cocaine amount stopped at 15 kilos so the
sentencing range would have been 135 to 168 months. The 11-year
offer was seemingly open until the witness list was revealed.
Short periods for reflection are commonly all that is
available when the defendant waits until the eve of trial to make
up his mind to plead guilty. United States v. Pagan-Ortega, 372
F.3d 22, 25 (1st Cir. 2004); United States v. Sanchez-Barreto, 93
F.3d 17, 23 (1st Cir. 1996), cert. denied, 519 U.S. 1068 (1997).
Perhaps the period here was short to adequately weigh 15 years as
compared to the risk of conviction and a still longer sentence.
But one office of a Rule 11 hearing is to test and reaffirm the
defendant's commitment to his plea.
2
Torres also argues that he agreed to plead guilty to a
sentence of 15 years rather than 15 years and 8 months, but the
agreement provided for a sentence that was the higher of 180 months
(15 years) or the lower end of the applicable sentencing guidelines
calculation, which turned out to be 188 months (15 years 8 months).
The magistrate judge explained this in the colloquy.
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Here, the plea hearing conducted by the magistrate judge
was impressively careful and Torres explicitly agreed to the amount
of drugs and the now-disputed enhancements, each phrased as a
separate question. Nothing in the colloquy indicated that Torres
felt uncomfortable with his plea; indeed, the magistrate judge,
taking note of the timing, asked whether Torres' change of plea was
due to the disclosure of the evidence against him:
Magistrate: I noticed that this plea agreement
is date[d] September the 10th, that's today's
date, in spite of that I would like to know if
you have throughly [sic] discussed the
contents of the plea agreement and if the
terms and conditions with this plea agreement
have been discussed prior to this date here in
court?
...
However it's my understanding that you
intended to go to trial and that at some point
you were either provided the names of the
government witnesses or you were allowed to
encounter them or see them and that's how you
basically decided that the best way to dispose
of this case was by pleading guilty, is that
correct?
Mr. Torres: Yes.
Such brief assurances are not conclusive if there is good
reason for disregarding them (imagine the case in which both a plea
and colloquy were achieved through undisclosed threats of
violence). But nothing like that is alleged in this case. The
trial judge, in later refusing to allow the withdrawal of the plea,
was entitled to give weight to Torres' assurances at his change of
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plea hearing. United States v. Martinez-Molina, 64 F.3d 719, 733
(1st Cir. 1995); Parrilla-Tirado, 22 F.3d at 373.
On this record Torres has not shown that the district
court abused its discretion in refusing to allow him to withdraw
his plea. The closer issue is whether we should remand for a full-
scale evidentiary hearing on the plea withdrawal issue--prompted
both by small uncertainties about just what occurred and an
inevitable sense of unease about the issues of pressure and timing.
Yet a remand, which inflicts costs of its own, would make sense
only if there were some likelihood of a different outcome.
In the end, we think that a remand is not warranted.
There are no proffers of further facts of importance (e.g., as to
other incidents of pressure) that, if proved, would tip the balance
in favor of a right to withdraw the plea. Nor is there even reason
to think the ultimate drug amount and disputed enhancements were
improper. This is a case, like many, with imperfections but no
clear indication either of legal error or an unjust result.
One loose end remains. In his brief in this court,
Torres also argues that he was entitled as a matter of right to
withdraw his plea under Fed. R. Crim. P. 11(d)(1), which allows a
guilty plea to be withdrawn before acceptance "for any reason or no
reason." Technically, because the Rule 11 hearing was conducted by
a magistrate judge, the plea acceptance occurred only when the
district judge adopted the magistrate's recommendation. The docket
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shows that this occurred on the same day as, and immediately
before, the notation of receipt of Torres' motion to withdraw his
plea.
Because this claim was not raised in the district court,
our review is only for plain error. United States v. Olano, 507
U.S. 725, 732-36 (1993). We do not know when Torres' motion
arrived in the district court or whether it was seen by the
district judge before he accepted the previously tendered plea.
Without delving into the legal issues presented by the entry of
both documents on the same day, there is certainly no "plain error"
in the district judge's failure sua sponte to treat the case as
governed by Rule 11(d)(1).
Affirmed.
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