United States v. De Jesus De Jesus

USCA1 Opinion









February 2, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1354

UNITED STATES,
Appellee,

v.

JOSE RAMON COTAL-CRESPO,
Defendant - Appellant.

____________________

No. 94-1355

UNITED STATES,
Appellee,

v.

ANTONIO DE JESUS-DE JESUS,
Defendant - Appellant.

____________________

No. 94-1356

UNITED STATES,
Appellee,

v.

IVAN RODRIGUEZ-BOCACHICA,
Defendant - Appellant.

____________________

ERRATA SHEET


The opinion of this Court issued on January 30, 1995, is
amended as follows:

On page 8, second full paragraph, first line, delete the
apostrophe in "Defendants'."





















UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-1354

UNITED STATES,
Appellee,

v.

JOSE RAMON COTAL-CRESPO,
Defendant - Appellant.

____________________

No. 94-1355

UNITED STATES,
Appellee,

v.

ANTONIO DE JESUS-DE JESUS,
Defendant - Appellant.

____________________

No. 94-1356

UNITED STATES,
Appellee,

v.

IVAN RODRIGUEZ-BOCACHICA,
Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

____________________















Before

Torruella, Chief Judge, ___________

Campbell, Senior Circuit Judge, ____________________

and Boudin, Circuit Judge. _____________

_____________________

Rachel Brill, with whom Benicio S nchez-Rivera, Federal _____________ _______________________
Public Defender, Carlos A. V zquez-Alvarez, Assistant Federal __________________________
Public Defender, and Mariangela Tirado, were on joint brief for __________________
appellants.
Warren V zquez, Assistant United States Attorney, with whom ______________
Jorge E. Vega-Pacheco, Acting United States Attorney, was on ______________________
brief for appellee.



____________________

January 30, 1995
____________________





























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TORRUELLA, Chief Judge. The issue to be decided in TORRUELLA, Chief Judge. ___________

this appeal is whether the district court complied with the

procedural safeguards mandated by Criminal Rule 11 prior to

accepting the three defendants' guilty pleas. We conclude that

the plea hearing conducted by the district court, while perhaps

somewhat less than ideal, adequately met the requirements of Rule

11. We therefore affirm.

BACKGROUND BACKGROUND

On February 17, 1993, a federal grand jury in Puerto

Rico indicted Jos Ram n Cotal-Crespo, Antonio De Jes s-De Jes s

and Iv n Rodr guez-Bocachica, in Count I, of conspiring to

possess with intent to distribute multi-kilograms of cocaine, in

violation of 21 U.S.C. 846. In addition, the indictment

alleged, in Counts II and III, that Cotal-Crespo used a

communication facility (a telephone) in facilitating the

commission of a drug trafficking offense, in violation of 21

U.S.C. 843(b). On March 3, 1993, the defendants entered pleas

of not guilty.

On June 8, 1993, the date their trial was scheduled to

begin, defendants requested a change of their respective pleas to

guilty. Defendants did not enter a plea agreement with the

government. The district court held a change of plea hearing and

subsequently accepted defendants' guilty pleas. Sentencing was

scheduled for September 9, 1993.

On August 11, 1993, defendants filed a pro se, joint ___ __

motion requesting withdrawal of their guilty pleas. The district


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court appointed each defendant new counsel and the motion was

argued on March 4, 1994. The district court denied the joint

motion in an Opinion and Order issued the same day. Cotal-Crespo

was eventually sentenced to 120 months on Count I and to 48

months on Counts II and III, to be served concurrently.

Rodr guez-Bocachica and De Jes s-De Jes s were each sentenced to

120 months on Count I. Pending before this Court is defendants'

consolidated appeal of the denial of their motion to withdraw

their guilty pleas.

DISCUSSION DISCUSSION

Defendants advance two arguments in support of their

contention that they should have been permitted to withdraw their

guilty pleas pursuant to Criminal Rule 11. First, they contend

that the district court failed to inform them of the nature of

the charges against them and determine that they understood those

charges. In support of this contention, defendants maintain that

they believed that the eight kilograms of cocaine they were

caught with could be split amongst them for sentencing purposes

and that they were consequently prejudiced by the district

court's failure to explain the nature of the conspiracy charge.

Second, defendants contend that the district court failed to

inform them of the consequences of their guilty pleas. They

assert, inter alia, that the district court did not explain to _____ ____

them that by pleading guilty they waived their constitutional

rights to a jury trial, to remain silent, and to confront

witnesses against them.


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I. The Legal Framework I. The Legal Framework ___________________

A. Rule 32(d) A. Rule 32(d) __________

A defendant may withdraw a guilty plea prior to

sentencing only upon a showing of "fair and just reason" for the

request. See United States v. Pellerito, 878 F.2d 1535, 1537 ___ _____________ _________

(1st Cir. 1989); see also Fed. R. Crim. P. 32(d). There are _________

several factors to consider in determining whether a defendant

has met this burden, the most significant of which is whether

the plea was knowing, voluntary and intelligent within the

meaning of Rule 11. United States v. Allard, 926 F.2d 1237, 1243 _____________ ______

(1st Cir. 1991). The other factors include: 1) the force and

plausibility of the proffered reason; 2) the timing of the

request; 3) whether the defendant has asserted his legal

innocence; and 4) whether the parties had reached a plea

agreement. Pellerito, 878 F.2d at 1537. In this case, _________

defendants focus their argument on the alleged Rule 11 violations

-- contending that these violations establish that their pleas

could not have been knowing, voluntary and intelligent.

B. Rule 11 B. Rule 11 _______

By entering a guilty plea, a defendant effectively

waives several constitutional rights. For that waiver to be

valid, due process requires that the plea amount to a voluntary

and "intentional relinquishment or abandonment of a known right

or privilege." McCarthy v. United States, 394 U.S. 459, 466, 89 ________ _____________

S. Ct. 1166, 22 L.Ed.2d 418 (1969) (quoting Johnson v. Zerbst, _______ ______

304 U.S. 458, 464, 58 S. Ct. 1019, 82 L.Ed.2d 1461 (1938));


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Allard, 926 F.2d at 1244. Rule 11 was intended to ensure that a ______

defendant who pleads guilty does so with an "understanding of the

nature of the charge and the consequences of his plea."

McCarthy, 394 U.S. at 467. ________

Rule 11 provides in pertinent part:

(c) Advice to Defendant. Before
accepting a plea of guilty or nolo
contendere, the court must address the ___________
defendant personally in open court and _________________________________________
inform the defendant of, and determine _________________________________________
that the defendant understands, the ___________________________________
following:

(1) the nature of the charge to which _________________________
the plea is offered, the mandatory
minimum penalty provided by law, if any,
and the maximum possible penalty provided
by law, including the effect of any
special parole or supervised release
term, the fact that the court is required
to consider and applicable sentencing
guidelines but may depart from those
guidelines under some circumstances . . .
and

* * *

(3) that the defendant has the right
to plead not guilty or to persist in that
plea if it has already been made, the ___
right to be tried by a jury and at that _________________________________________
trial the right to the assistance of _________________________________________
counsel, the right to confront and cross- _________________________________________
examine adverse witnesses, and the right _________________________________________
against compelled self-incrimination; and ____________________________________

(4) that if a plea of guilty or nolo
contendere is accepted by the court there
will not be a further trial of any kind
so that by pleading guilty or nolo
contendere the defendant waives the right
to trial; and

(5) if the court intends to question
the defendant under oath, on the record,
and in the presence of counsel about the
offense to which the defendant has

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pleaded, that the defendant's answers may
later be used against him in a
prosecution for perjury or false
statement.

(d) Insuring that the Plea is Voluntary.
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. P. 11(c),(d) (emphasis added).

We have distinguished between "technical" violations of

Rule 11 and violations of the rule's "core concerns," and held

that a violation that "implicates one of the rule's 'core

concerns' mandates that the plea be set aside." United States v. _____________

Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994) (citing Allard, 926 _______________ ______

F.2d at 1244). 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. Allard, 926 F.2d at 1244- ______

45.1

In determining whether there has been a core violation,

we review the totality of the circumstances surrounding the Rule

11 hearing, rather than apply a "talismanic test." See id. at ___ __

1245 (citing United States v. Dayton, 604 F.2d 931, 939 (5th Cir. _____________ ______

1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1080, 63 L.Ed.2d ____________

320 (1980)). What is critical is the substance of what was

communicated by the trial court, and what should reasonably have

been understood by the defendant, rather than the form of the
____________________

1 See infra n.5. ___ _____

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communication. See Medina-Silverio, 30 F.3d at 3 (emphasizing ___ _______________

that there is no "formula of 'magic words' in meeting the

requirements of Rule 11"). At a minimum, Rule 11 requires that

the trial court address the defendant personally in open court to

ascertain that his plea is "voluntary and intelligent." See id. ___ __

at 2-3 (citing Fed. R. Crim. P. 11(c)).

In the absence of a total failure to address one of

Rule 11's core concerns, the question is whether irregularities

in the plea-taking proceeding affected the defendant's

"substantial rights." Fed. R. Crim. P. 11(h). Other than for

errors of law, we will overturn the trial judge's decision not to

allow the withdrawal of a guilty plea only for "demonstrable

abuse of discretion," and the trial court's subsidiary findings

of fact in connection with the plea-withdrawal motion are

reviewed only for clear error. Allard, 926 F.2d at 1245 (citing ______

Pellerito, 878 F.2d at 1538). _________

II. The Nature of the Charges II. The Nature of the Charges _________________________

Defendants contend that the trial court failed to

determine that they understood the nature of the charges against

them, as required by Rule 11(c)(1). See United States v. Ruiz- ___ _____________ _____

Del Valle, 8 F.3d 98, 102 (1st Cir. 1993). Defendants maintain _________

that they believed that the eight kilograms of cocaine could be

"somehow split among the three for sentencing," and, therefore,

assert that they were prejudiced by the trial court's failure to

explain that each of them would be held responsible for the

cocaine found in their collective possession, regardless of any


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stated intention to later split the drugs.

There are two central difficulties with this argument.

First of all, the amount of drugs for which each defendant is

held responsible is an issue relevant to sentencing, not to a

particular defendant's guilt. See United States v. Musa, 946 ___ ______________ ____

F.2d 1297, 1305 (7th Cir. 1991); United States v. Young, 927 F.2d _____________ _____

1060, 1065 (8th Cir.), cert. denied, __ U.S. __, 112 S. Ct. 384, ____________

116 L.Ed.2d 334 (1991).2 Secondly, the trial court personally

addressed each defendant and discussed with him the maximum and

minimum penalties provided by law for his offense. After fully

explaining the guideline ranges, the court informed each

defendant that the minimum sentence on Count I is 120 months. _______

When asked if they understood this, each defendant answered in

the affirmative. In addition, the trial court personally

addressed each defendant and asked him to "tell his story" with

____________________

2 Defendants rely heavily on the following statement by Cotal-
Crespo's attorney during the plea hearing.

THE COURT: It is a 120-month minimum.
The base offense level will be 32, but
you say that has nothing to do with the
minimum.

MR. LAWS: The minimum allowable is
120, and at the time of sentencing we
will argue to the Court to reduce it.
But at this time that is what we have
before the Court.

Defendants maintain that this statement illustrates that they
believed the amount of drugs could be divided for purposes of
sentencing. This may be true, but it also reveals that Cotal-
Crespo's attorney recognized that the amount of drugs
attributable to each defendant was a question for sentencing, not
the plea hearing.

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respect to the charges against him. In telling their respective

stories, none of the defendants gave the slightest indication

that they disputed the amount of drugs involved or their role in

the transaction vis-a-vis the total amount of drugs.

Defendants also argue that they must be allowed to

withdraw their guilty pleas because the trial court did not read

or explain the charges to them. Our review of the plea hearing

transcript reveals that the trial court did not read the charges

nor did it explain the law of conspiracy.

It is not necessary that the explanation of the charges

come directly from the court, however, if it can be discerned

from a review of the proceeding that the defendant nevertheless

understood the charges. See Allard, 926 F.2d at 1246 (citing ___ ______

Dayton, 604 F.2d at 943). See also United States v. Musa, 946 ______ ________ _____________ ____

F.2d 1297, 1305 (7th Cir. 1991); United States v. Darling, 766 _____________ _______

F.2d 1095, 1099 (7th Cir.) (citing cases), cert. denied, 474 U.S. ____________

1024, 106 S. Ct. 579, 88 L.Ed.2d 561 (1985); United States v. ______________

Cusenza, 749 F.2d 473, 476 (7th Cir. 1984); United States v. _______ ______________

Gray, 611 F.2d 194, 200 (5th Cir.), cert. denied, 446 U.S. 911, ____ ____________

100 S. Ct. 1840, 64 L.Ed.2d 264 (1980); United States v. ______________

Coronado, 554 F.2d 166, 173 (5th Cir.), cert. denied, 434 U.S. ________ _____________

870, 98 S. Ct. 214, 54 L.Ed.2d 149 (1977). Thus, where the

prosecutor's statement or the defendant's description of the

facts sets forth all elements of the offense and the conduct of

the defendant that constitutes the offense, "the defendant's

admission that the allegations are true is sufficient evidence


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that he understands the charge." Darling, 766 F.2d at 1099. See _______ ___

Allard, 926 F.2d at 1246. ______

In this case, each defendant stated at the plea hearing

that he went, together with the other two defendants, to buy the

drugs. In addition, Cotal-Crespo admitted to making phone calls

with respect to the drug transaction. Thus, each defendant's

admission of the events underlying the transaction accurately

described the elements of a violation of 21 U.S.C. 846 -- an

agreement to buy a large amount of drugs3 -- and Cotal-Crespo's

admission described the elements of a violation of 21 U.S.C.

843(b). Moreover, each of the defendants agreed with the

prosecutor's detailed summary of the facts the government would

prove at trial, which also included a description of all the

elements of both charges.

The manner in which the charge is explained and the

method for determining the defendant's understanding of the

charge will vary from case to case depending upon the complexity

of the charges, the capacity of the defendant, and the attendant

circumstances. Allard, 926 F.2d at 1245. See also Darling, 766 ______ ________ _______

F.2d at 1098. "[W]hile the subtleties of conspiracy law may be

the bane of criminal law students, the basic principle is easily

understood: a group of people agreeing to do something illegal."

____________________

3 The Supreme Court has recently held that, in order to
establish a violation of section 846, the government need not
prove the commission of any overt acts in furtherance of the
conspiracy. United States v. Shabani, __ U.S. __, 115 S. Ct. ______________ _______
382, 385-86, 130 L.Ed.2d 225 (1994). Accord United States v. ______ _____________
Paiva, 892 F.2d 148, 155 (1st Cir. 1989). _____

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United States v. Carter, 815 F.2d 827, 829 (1st Cir. 1987). We ______________ ______

find nothing in the record to indicate that the defendants did

not understand the drug conspiracy charge.4 Rather, the plea

hearing indicates that the defendants knew exactly what they were

charged with and voluntarily made the decision to plead guilty.

III. Consequences of Guilty Plea III. Consequences of Guilty Plea ___________________________

The defendants also contend that the trial judge failed

to inform them of the consequences of their guilty pleas.

Specifically, they claim that the court failed to determine that

they understood and waived their rights to remain silent, to a

jury trial, and to confront witnesses against them. In addition,

they contend that the court did not explain the possibility of

departure from the guidelines or counsel the defendants about the

possibility of a later prosecution for perjury based upon their

statements at the Rule 11 hearing. We necessarily turn to an

examination of the plea colloquy.

The trial court began by asking each defendant whether

____________________

4 Contrary to defendants' assertions, our decision in United ______
States v. Ruiz-Del Valle, 8 F.3d 98 (1st Cir. 1993), is ______ _______________
distinguishable. In that case we found the change of plea
hearing defective as to the firearms count for two reasons: 1)
the charge was neither read nor explained to the defendant by the
trial court and the government made only a fleeting mention of
the firearms count in its outline of the evidence; and 2) the
defendant made a statement during the plea hearing which should
have put the trial court on notice that she did not understand
the firearms charge. Id. at 103. We also held in Ruiz-Del Valle __ ______________
that the defendant should be allowed to withdraw her guilty plea
because it would be a miscarriage of justice not to in light of
the trial court's subsequent finding in the case of defendant's
husband that there was an insufficiency of the evidence on the
firearms count. Id. at 104. These exceptional circumstances are __
not present in the instant case.

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he had read and understood the petition questions, and whether he

had consulted with his attorney regarding those questions and his

answers. Each defendant answered in the affirmative. The court

then asked the standard questions to determine whether the

defendants were competent to plead and whether they were

satisfied with their attorneys. The court asked each defendant

whether he remembered reading and answering questions about his

right to a jury trial and whether he understood that if he pleads

guilty he will be found guilty without a trial. The defendants

responded in the affirmative to all these questions.

Next, the court asked each of the defendants to give

their "story" with respect to the charges against them, which

each defendant did. Then the government gave a detailed summary

of the evidence it would prove at trial and each defendant

indicated his agreement with the government's recitation of the

pertinent evidence. The court then informed each defendant of

the maximum and minimum penalties provided by law for the charged

offenses and received their assurances that they understood their

potential sentences. Finally, the court asked each defendant

whether, knowing the possible penalties, including the mandatory

minimum of 120 months, they wanted to plead guilty. Each

defendant answered in the affirmative. The court did not

specifically ask the defendants whether they knew and understood

their rights to remain silent and to confront witnesses against

them, nor did it mention the possibility of departure or a

perjury charge.


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It is abundantly clear from the transcript of the

hearing that the defendants understood the nature of the charges

against them, understood their right to a jury trial, understood

their potential sentences, agreed with the prosecutor's

recitation of what the government would prove at trial, and, most

importantly, acknowledged, with no perceptible hesitation, their

guilt based on those allegations. Moreover, there was no need to

discuss departure from the guidelines because all the parties

agreed that there was a statutory minimum of 120 months. The

narrow question for decision, therefore, is whether the failure

of the trial court to specifically mention the right to remain

silent, the right to confront witnesses, and the possibility of a

perjury charge, standing alone, mandates that defendants be

permitted to withdraw their guilty pleas. We conclude, based on

the totality of the circumstances, that it does not.

The district court explained, and determined on the

record that the defendants understood many of the "consequences"

of their guilty pleas. This is, therefore, not a case of a

"total failure" to address one of Rule 11's core concerns. See ___

Allard, 926 F.2d at 1244-45 (citing McCarthy, 394 U.S. at 471- ______ ________

72.5 The question, therefore, is whether the district court's
____________________

5 We note with interest the experience of the Fifth Circuit,
which recently overruled its long held position that a "total
failure" to address one of Rule 11's core concerns warrants a per ___
se reversal. See United States v. Johnson, 1 F.3d 296, 297 (5th __ ___ _____________ _______
Cir. 1993) (en banc). Under its prior jurisprudence, the Fifth
Circuit distinguished between the total and partial failure to
address Rule 11's core concerns, holding that the former required
per se reversal while the latter was judged under the harmless ___ __
error standard of Rule 11(h). See, e.g., United States v. ___ ____ ______________

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failure to inform the defendants of all of the consequences of

their pleas, as delineated by Rule 11, "affected defendants'

substantial rights." See Fed. R. Crim. P. 11(h). For the ___

reasons explained below, we conclude that Rule 11's core concern

that defendants understand the consequences of their plea was

adequately addressed in this case and that the defendants'

substantial rights were not violated. We therefore hold that the

district court's failure to explicitly address all of Rule 11's
____________________

Pierce, 893 F.2d 669, 679 (5th Cir.1990). Although we have ______
phrased the analysis in somewhat different fashion, our
jurisprudence in this area is similar to the approach rejected by
the Fifth Circuit in Johnson. See generally, Allard, 926 F.2d at _______ _____________ ______
1244-45.

In Johnson, the court reasoned that the genesis for the _______
total/partial failure dichotomy was the Supreme Court's 1973
decision in McCarthy, which antedated the amendment of Rule 11 ________
with section (h). See Johnson, 1 F.3d at 300. In the Fifth ___ _______
Circuit's view, the per se reversal rule for core violations _______
"should have been supplanted by the 1983 addition of section (h)
to Rule 11." Id. The court therefore held that, henceforth, it __
would, regardless of the type of alleged Rule 11 violation,
engage in a straightforward, two-question 'harmless error'
analysis, asking, first, whether the sentencing court varied from
the procedures required by Rule 11, and, second, if it did,
whether the variance affected the substantial rights of the
defendant. Id. In determining whether a Rule 11 error is __
harmless, the court stated that it would "focus on whether the
defendant's knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to
plead guilty." Id. at 301. The Fifth Circuit qualified its __
opinion, however, by noting that it is difficult to imagine a
situation where a trial court's entire failure to mention a core
concern would not "affect substantial rights." Id. at 301 n.26. __

At least at first blush, we find the Fifth Circuit's opinion
in Johnson persuasive. Because this is not a "total failure" _______
case, however, we need not decide just how persuasive. Moreover,
we think it would be imprudent to do so considering that the
parties in this case did not brief the issue and, in any case, it
is an issue best left to the full court's review.



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requirements was harmless error.

The record of the plea hearing is replete with evidence

that the defendants understood the charges against them, faced up

to them, and chose voluntarily to plead guilty. It is clear also

that the defendants understood that they had the right to persist

in their innocence and go to trial, and that they had read and

understood the petition questions, which explained that they had

the right to remain silent and to confront witnesses against

them. Moreover, the trial court meticulously explained, and

ensured on the record that the defendants understood, the maximum

and minimum statutory penalties and their sentencing guideline

ranges. Each defendant stated on the record that he understood

that his minimum sentence would be 120 months.

Finally, we are mindful of the traditional factors

relevant to the review of a change of plea request.6 First,

defendants waited two months before deciding that they did not

understand the consequences of their guilty pleas. Second,

defendants have not asserted their legal innocence. Third,

defendants have not argued, much less attempted to show, that the

knowledge that they had the right to remain silent and to

confront the witnesses against them at trial would have

materially affected their decisions to plead guilty.

Defendants argue that our decision in Medina-Silverio _______________

requires reversal. In that case, however, we held only that:
____________________

6 Although the traditional factors are somewhat dwarfed in this
case by the alleged core Rule 11 violations, they nevertheless
remain relevant to our totality of the circumstances analysis.

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Where a district court neither conducts a
direct personal interrogation, nor
advises the defendant of his rights, all
substantially as required under Rule 11,
there can be no sufficient basis for
finding that the guilty plea was
voluntary, intelligentor otherwise valid.

Medina-Silverio, 30 F.3d at 3. Thus, a trial court's reliance _______________

solely on answers provided by a defendant in a written document ______

is insufficient for purposes of Rule 11. In this case, in

addition to answers provided in a written document, however, the

court personally and meticulously addressed each of the

defendants with respect to the alleged facts underlying the

charges against him, his right to a jury trial and the maximum

and minimum sentences.

CONCLUSION CONCLUSION

In 1968, the Supreme Court explained that Rule 11 was

designed, at least in part, to produce a complete record to

enable reviewing courts to determine, based on a cold transcript,

whether a plea was voluntary. The Court thus commented that:

[T]he more meticulously the Rule is
adhered to, the more it tends to
discourage, or at least to enable more
expeditious disposition of, the numerous
and often frivolous post-conviction
attacks on the constitutional validity of
guilty pleas.

McCarthy, 394 U.S. at 465. Although we conclude that the Rule 11 ________

hearing in this case was adequate, we are nevertheless compelled

to remind district courts that, for the sake of judicial economy

and fundamental fairness, the best way to ensure that Rule 11 is

complied with is to explicitly comply with Rule 11.


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The judgment of the district court is affirmed. affirmed ________




















































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