USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1249
UNITED STATES,
Appellee,
v.
CARLOS MARTINEZ-MOLINA,
Defendant - Appellant.
____________________
No. 94-1250
UNITED STATES,
Appellee,
v.
LUIS MALDONADO-RODRIGUEZ,
Defendant - Appellant.
____________________
No. 94-1251
UNITED STATES,
Appellee,
v.
ALFONSO RODRIGUEZ-RESTO,
Defendant - Appellant.
____________________
No. 94-1252
UNITED STATES,
Appellee,
v.
ANGEL RODRIGUEZ-RODRIGUEZ,
Defendant - Appellant.
____________________
No. 94-1253
UNITED STATES,
Appellee,
v.
ANGEL FELICIANO-COLON,
Defendant - Appellant.
____________________
No. 94-1254
UNITED STATES,
Appellee,
v.
LUIS MAYSONET-MACHADO,
Defendant - Appellant.
____________________
No. 94-1255
UNITED STATES,
Appellee,
v.
RAFAEL E. VELEZ-MATOS,
Defendant - Appellant.
____________________
No. 94-1325
UNITED STATES,
Appellee,
v.
VICTOR NOBLE-CANALES,
Defendant - Appellant.
____________________
-2-
No. 94-1631
UNITED STATES,
Appellee,
v.
EDDIE TRAVIESO-OCASIO,
Defendant - Appellant.
____________________
No. 94-1791
UNITED STATES,
Appellee,
v.
OSCAR PAGAN-GARCIA,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________
_____________________
Teodoro M ndez-Lebr n, by Appointment of the Court, for ______________________
appellant Carlos Mart nez-Molina.
Laura Maldonado-Rodr guez, Assistant Federal Public ___________________________
Defender, with whom Benicio S nchez-Rivera, Federal Public ________________________
Defender, was on brief for appellant Luis Maldonado-Rodr guez.
Ram n Garc a, by Appointment of the Court, on brief for _____________
appellant Alfonso Rodr guez-Resto.
Eric B. Singleton for appellant Angel Rodr guez-Rodr guez. _________________
Frank Pola, Jr., by Appointment of the Court, for appellant ________________
Angel Feliciano-Col n.
Manuel San Juan, by Appointment of the Court, for appellant _______________
Luis Maysonet-Machado.
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Miriam Ramos-Grateroles, by Appointment of the Court, for _______________________
appellant Rafael E. V lez-Matos.
Thomas R. Lincoln, by Appointment of the Court, with whom __________________
Law Offices of Thomas R. Lincoln, was on brief for appellant ___________________________________
V ctor Noble-Canales.
Mar a H. Sandoval for appellant Eddie Travieso-Ocasio. _________________
Lydia Lizarribar-Masini for appellant Oscar Pag n-Garc a. _______________________
Joseph C. Wyderko, Attorney, Department of Justice, with __________________
whom Guillermo Gil, United States Attorney, and Esther Castro- _____________ ______________
Schmidt, were on brief for appellee. _______
____________________
August 30, 1995
____________________
-4-
TORRUELLA, Chief Judge. Appellants and four co- TORRUELLA, Chief Judge. ____________
defendants were arrested at the Barbosa Park in Santurce, Puerto
Rico, after a Drug Enforcement Administration ("DEA") agent
observed them participating in what appeared to be a drug
transaction. The defendants moved to suppress evidence obtained
pursuant to the arrest on the grounds that the arrests and
subsequent searches were made without probable cause. The
district court denied their motions, and the appellants entered
conditional guilty pleas. Several appellants subsequently
claimed that their guilty pleas were coerced and moved to
withdraw them. The district court denied these motions as well.
Appellants now appeal the denial of the motions to
suppress and motions to withdraw their guilty pleas. For the
following reasons, we affirm in part and reverse in part.
STATEMENT OF FACTS STATEMENT OF FACTS
We recite the facts adduced at a suppression hearing in
the light most favorable to the district court's ruling to the
extent that they derive support from the record and are not
clearly erroneous. United States v. Sealey, 30 F.3d 7, 8 (1st ______________ ______
Cir. 1994).
On July 1, 1993, at approximately 2:30 p.m., DEA Agent
Carlos Rivera ("Agent Rivera") was driving past Barbosa park when
he noticed eight or nine men grouped around a concrete bench near
one of the park's basketball courts. Seven or eight vehicles
were parked in a row alongside the group of men. Appellant Luis
Maldonado-Rodr guez ("Maldonado") was talking on a cellular phone
-5-
and another man in the group had a cellular phone attached to his
waist. Agent Rivera observed that the men were not dressed to
play basketball and did not appear to have coolers, sodas, or
alcoholic beverages. Agent Rivera testified that although he did
not know any of the men by name, he had occasionally seen
Maldonado near a drug distribution spot in a local housing
project.
Agent Rivera parked his car in the adjoining parking
lot and began to surveil the group through binoculars. Besides
Maldonado, the group included appellants Alfonso Rodr guez-Resto
("Rodr guez-Resto"), Eddie Travieso-Ocasio ("Travieso"), Angel
Feliciano-Col n ("Feliciano"), V ctor Noble-Canales ("Noble"),
Luis Maysonet-Machado ("Maysonet"), and Rafael E. V lez-Matos
("V lez"). Codefendants Enrique Romero-Carri n ("Romero"),
Carlos Rub n Tejada-Morales ("Carlos Tejada"), Angel David
Tejada-Morales ("Angel Tejada") were also present.1
About ten minutes later, Agent Rivera saw a black
Nissan Pathfinder drive up and park behind Maldonado's Red Suzuki
jeep. The passenger of the black Pathfinder (the "Passenger")2
exited the vehicle and conversed with Maldonado, Travieso,
Feliciano, and Romero. The Passenger then removed a large
handbag from the rear of the black Pathfinder and placed it
between a white GMC van and a gray Mercury Cougar parked side-by-
____________________
1 Romero, Carlos Tejada, and Angel Tejada are not parties to
this appeal.
2 The driver and passenger of the black Pathfinder were never
identified.
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side next to the basketball court. The Passenger removed a
second handbag from the black Pathfinder and placed it next to
the first.
Agent Rivera then drove through the parking lot to get
a closer look. As he passed by, he saw Maldonado, Travieso,
Feliciano, Romero, and the Passenger gathered around the
handbags. Agent Rivera testified that the Passenger was handling
square-shaped packages that appeared to contain cocaine. Agent
Rivera also noticed that the sliding door of the white GMC van
was open, although he could not see anything inside.
After returning to his previous surveillance post,
Agent Rivera saw Noble, Maysonet, Carlos Tejada, and Angel Tejada
standing near the black Pathfinder. Agent Rivera also observed
Travieso and Romero apparently arranging something in the rear of
a black Pontiac station wagon. Agent Rivera did not observe them
carry anything to the black station wagon. Several minutes
later, the black Pathfinder left the parking lot. Agent Rivera
then left his surveillance post and called his office for backup.
Around the same time as Agent Rivera returned to his post,
appellant Angel Rodr guez-Rodr guez ("Rodr guez-Rodr guez")
arrived in a black Chevrolet Lumina, joined the group for three
or four minutes, and then left.
Appellants Oscar Pag n-Garc a ("Pag n") and codefendant
Roberto Maldonado-Torres ("Maldonado-Torres") arrived in a red
Ford Mustang about five minutes later. Agent Rivera observed
Travieso approach the Mustang and lean his body inside the
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vehicle as if he were looking for something. Travieso removed an
object (which Agent Rivera could not identify) from the red
Mustang and headed towards the gray Toyota Tercel. When he
returned, he took a green handbag from the red Mustang and
brought it to the rear of that vehicle. Pag n exited the
driver's side of the red Mustang and opened its trunk. Agent
Rivera testified that the trunk remained open for several
seconds, but that he was unable to discern what happened to the
green handbag. A few seconds later, Maldonado-Torres exited from
the passenger's side of the red Mustang and accompanied Travieso
and Pag n as they joined the group near the bench. Shortly
thereafter, Rodr guez-Rodr guez returned to the parking lot in
the black Lumina and rejoined the group.
Several minutes later, Rodr guez-Resto and Romero left
the parking lot in the black Pontiac station wagon. By this
time, several other DEA agents had joined Agent Rivera. Agent
Rivera followed the black station wagon as it circled the park
while the other agents continued to surveil the parking lot.
Agent Rivera testified that Rodr guez-Resto and Romero appeared
to him to be conducting countersurveillance in an effort to
ferret out any "tails."3 After Rodr guez-Resto and Romero
returned to the parking lot, Agent Rivera joined the other agents
at his prior surveillance post.
____________________
3 Specifically, Agent Rivera testified that Rodr guez-Resto and
Romero were "buscando rabo . . . which indicates that they were _____________
looking around, checking on surveillance to see who's watching
them . . . . [T]hey're looking through their rear view mirrors,
looking all over the place to see who's watching them."
-8-
A few moments later, appellant Carlos Mart nez-Molina
("Mart nez") arrived in a black Toyota Supra and the six DEA
Agents decided to intervene. The Agents, all clad in DEA
jackets, identified themselves as law enforcement personnel and
moved in to detain the group. V lez, Mart nez, Romero, and
Maldonado-Torres were all detained as they attempted to flee the
scene. Mart nez discarded an airplane ticket while fleeing.
Agent Rivera also found an abandoned cellular phone nearby. The
Agents also seized airline tickets from Feliciano, Pag n, Noble,
Maysonet, Carlos Tejada, and Angel Tejada. All of the seized
tickets had been issued under false names for a flight from
Puerto Rico to New York later that afternoon. Rodr guez-Resto,
Travieso, Noble, Pag n, Carlos Tejada, Angel Tejada, and Romero
were all found to be carrying over $1,000 in cash.
Agent Rivera testified that after all fourteen men had
been arrested, he observed suitcases in three of the vehicles:
the red Suzuki, the white van, and the black station wagon. He
also testified that twelve yellow, U.S.D.A. Agricultural
inspection stickers were in plain view on the front seats and
dashboards of six of the vehicles. Agent Rivera testified that,
based on his experience in law enforcement, he knew that drug
smugglers commonly used these stickers to bypass agricultural
inspection at the airport. The Agents then searched all of the
vehicles. Seven of the vehicles contained two suitcases each,
for a total of fourteen suitcases. The Agents also found two
handbags in the black station wagon, including the green handbag
-9-
Travieso had removed from the red Mustang. The Agents found
$3,000 in cash in the black Lumina and an unused airline ticket
for a flight on the previous day in a Red Mazda Protege.
The men were all handcuffed and taken to the DEA
offices. The Agents obtained a search warrant for the suitcases
and handbags after a drug detection dog indicated the probable
presence of narcotics in eleven of the suitcases and both
handbags. Each of the eleven suitcases contained thirty to forty
kilograms of cocaine. Neither handbag was found to contain
cocaine.
PROCEDURAL HISTORY PROCEDURAL HISTORY
The defendants all moved to suppress the evidence
seized from their persons and vehicles. The district court
denied the motions to suppress, and all ten appellants entered
conditional guilty pleas to possession with intent to distribute
cocaine, in violation of 21 U.S.C. 841(a). In exchange for each
appellant's written plea agreement, the government agreed to
limit each appellant's relevant conduct to fifteen kilograms for
the purpose of sentencing. The plea agreements were part of a
"package deal" and were contingent on all of the defendants in
this case accepting the plea offer and entering a plea of guilty.
The plea agreements provided that "should any of the defendants
decide to change his plea according to the offer, the plea is
automatically withdrawn as to all of the defendants." Carlos
Tejada, Angel Tejada, and Romero had elected to go to trial and
were excepted from this requirement.
-10-
All ten appellants entered their guilty pleas on
October 20, 1993. Later that day, the jury trial commenced for
codefendants Carlos Tejada, Angel Tejada, and Romero. At the
conclusion of the government's case, the court granted Carlos
Tejada's motion for acquittal. On October 27, 1994, the jury
acquitted Angel Tejada and convicted Romero.
On November 16, 1993, Rodr guez-Resto moved to withdraw
his guilty plea. Travieso and V lez both moved to withdraw their
guilty pleas on January 31, 1994, the day of the sentencing
hearing. The district court denied all three motions.4
THE MOTIONS TO SUPPRESS THE MOTIONS TO SUPPRESS
I. Lawfulness of Arrests I. Lawfulness of Arrests _____________________
Nine appellants -- Maldonado, Rodr guez-Resto,
Rodr guez-Rodr guez,5 Feliciano, Maysonet, V lez, Noble,
____________________
4 The district court also denied the motions to withdraw the
guilty pleas of three other defendants. These defendants,
however, do not appeal this issue.
5 Nothing was seized from the person of Rodr guez-Rodr guez.
Rather, he seeks to suppress the cash found in his Black Lumina.
In this regard, he argues that his arrest was unlawful and
accordingly the search of the vehicle was not a valid search-
incident-to-arrest. See New York v. Belton, 453 U.S. 454, 460-61 ___ ________ ______
(1981).
The government, however, no longer attempts to justify the
vehicle searches as incident to lawful arrest, contending instead
that there was probable cause to search the vehicles. "Under the
'automobile exception,' the only essential predicate for a valid
warrantless search of a motor vehicle by law enforcement officers
is probable cause to believe that the vehicle contains contraband
or other evidence of criminal activity." United States v. McCoy, _____________ _____
977 F.2d 706, 710 (1st Cir. 1992) (citations omitted).
Therefore, provided there was probable cause to search the
vehicle at the time of Rodr guez-Rodr guez' arrest, the search
was valid even if the arrest was not, as the police would have
had an independent basis for searching the vehicle, apart from
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Travieso, and Pag n -- argue that they were arrested without
probable cause, and that therefore the items seized during their
arrest should have been suppressed.
A. Standard of Review A. Standard of Review __________________
With respect to a motion to suppress, we review a
district court's findings of fact only for clear error. Sealey, ______
30 F.3d at 9; United States v. Maguire, 918 F.2d 254, 257 (1st _____________ _______
Cir. 1990), cert. denied, 499 U.S. 950 (1991). This deferential ____________
standard is appropriate because the district court has a superior
sense of what actually transpired during an incident by virtue of
its ability to see and hear the witnesses who have firsthand
knowledge of the events. United States v. Zapata, 18 F.3d 971, _____________ ______
975 (1st Cir. 1994). Questions of law, however, are subject to
de novo review. Id. _______ __
B. Applicable Law B. Applicable Law ______________
Law enforcement officers may effect warrantless arrests
provided that they have probable cause to believe that the
suspect has committed or is committing a crime. United States v. _____________
Watson, 423 U.S. 411, 416-18 (1976); Gerstein v. Pugh, 420 U.S. ______ ________ ____
103, 113-14 (1975). "[P]robable cause is a fluid concept --
turning on the assessment of probabilities in particular factual
contexts," Illinois v. Gates, 462 U.S. 213, 232 (1983), and as ________ _____
such "must be evaluated in light of the totality of
____________________
any exploitation of illegal conduct. Id. at n.4. See also Brown ___ ________ _____
v. Illinois, 422 U.S. 590, 599 (1975); United States v. Pimental, ________ _____________ ________
645 F.2d 85, 86 (1st Cir. 1981). Therefore, in addressing
Rodr guez-Rodr guez' motion to suppress, we need not decide
whether his arrest was unlawful.
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circumstances." United States v. Torres-Maldonado, 14 F.3d 95, ______________ ________________
105 (1st Cir. 1994) (quoting United States v. ________________
Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir. 1991)). ___________________
Moreover, in order to establish probable cause, the government
"need not present the quantum of proof necessary to convict."
Id. at 105 (quoting Uricoechea-Casallas, 946 F.2d at 165). See __ ___________________ ___
also United States v. Morris, 977 F.2d 677, 684 (1st Cir. 1992) ____ _____________ ______
(same), cert. denied, 113 S. Ct. 1588 (1993); United States v. _____________ ______________
Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987) (same). Rather, it ________
need only show that at the time of the arrest, the facts and
circumstances known to the arresting officers were sufficient to
warrant a prudent person in believing that the defendant had
committed or was committing an offense. Torres-Maldonado, 14 ________________
F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91 (1964). ________ ____ ____
Of course, probable cause must exist with respect to
each person arrested, and "a person's mere propinquity to others
independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person." Ybarra ______
v. Illinois, 444 U.S. 85, 91 (1979) (citing Sibron v. New York, ________ ______ _________
392 U.S. 40, 62-63 (1968)); see also United States v. Diallo, 29 ________ _____________ ______
F.3d 23, 25 (1st Cir. 1994). Rather, "some additional
circumstances from which it is reasonable to infer participation
in criminal enterprise must be shown." United States v. Burrell, _____________ _______
963 F.2d 976, 986 (7th Cir.), cert. denied, 113 S. Ct. 357 (1992) ____________
(quoting United States v. Hillison, 733 F.2d 692, 697 (9th Cir. _____________ ________
1984)).
-13-
In assessing the significance of a defendant's
association to others independently suspected of criminal
activity, the Hillison court looked to whether the known criminal ________
activity was contemporaneous with the association and whether the
circumstances suggest that the criminal activity could have been
carried on without the knowledge of all persons present. See ___
Hillison, 733 F.2d at 697 (citations omitted). Other courts have ________
focused on the nature of the place in which the arrest occurred
and whether the individual himself was behaving suspiciously or
was merely "tainted" by another. See United States v. Tehrani, ___ ______________ _______
49 F.3d 54, 59 (2d Cir. 1995).
A survey of the relevant caselaw makes clear, however,
that it is often difficult to determine precisely what additional
factors are sufficient to create the requisite inference of
participatory involvement. In Ybarra, 444 U.S. at 90-91, ______
officers had a warrant to search a bar and its bartender for
heroin. They conducted a patdown search of Ybarra, a bar patron,
despite the fact he had made no gestures suggesting criminal
conduct, no attempts to conceal contraband, and no suspicious
statements. In declaring the search invalid, the Court noted
that the officers "knew nothing more about Ybarra except that he
was present, along with several other customers, in a public
tavern at a time when the police had reason to believe that the
bartender would have heroin for sale." Id. at 91. See also ___ _________
Swint v. City of Wadley, Alabama, 51 F.3d 988 (11th Cir. 1995) _____ ________________________
(holding that the legitimate search and seizure of one suspect in
-14-
a public place cannot be bootstrapped into probable cause for a
broadbase search of the business establishment and its patrons).
Similarly, in Sibron v. New York, 390 U.S. 40, 62 ______ _________
(1968), the Court held that probable cause was not established by
the mere fact that the defendant spoke to a number of known
narcotics addicts over a period of eight hours where the
arresting officer was completely ignorant regarding the content
of the conversation and saw nothing pass between the defendant
and the addicts. See also United States v. Chadwick, 532 F.2d _________ _____________ ________
773, 784 (1st Cir. 1976), aff'd on other grounds 433 U.S. 1 _______________________
(1977) (mere act of picking up suspected drug traffickers at the
train station and helping them load a contraband-laden footlocker
into car does not, without more, constitute probable cause);
United States v. Di Re, 332 U.S. 581, 593 (1948) (holding that _____________ _____
"[t]he argument that one who 'accompanies a criminal to a crime
rendezvous' cannot be assumed to be a bystander, forceful enough
in some circumstances, is farfetched when the meeting is not
secretive or in a suspicious hide-out . . . and where the alleged
substantive crime is one which does not necessarily involve any
act visibly criminal").
In contrast, the cases in which courts find that
probable cause exists generally involve substantially more than a
momentary, random, or apparently innocent association between the
defendant and the known criminal activity. For instance, in
United States v. Patrick, 899 F.2d 169 (2d Cir. 1990), the court _____________ _______
upheld the search of a male defendant (Patrick) who crossed the
-15-
border from Canada into New York at about the same time as a
woman (Taylor) who was found to be carrying narcotics. Id. at ___
170. When the two entered the Immigration Office, there were no
other travellers present, and both defendants told the same
unusual story: they had accidentally crossed the border by bus
and were simply returning to the United States. Id. at 171. ___
When cocaine base was found in the woman's purse, the man was
also arrested. Id. at 172. Distinguishing Ybarra, the court ___ ______
found that the fact that the man and woman had simultaneously
entered the Immigration Office at a time when no others were
present and that both told the same unusual story "provided an
adequate basis for the officials to reasonably believe that
Patrick was not just a mere innocent traveling companion but was
travelling and acting in concert with Taylor in transporting the
cocaine." Id. ___
Similarly, in United States v. Halliman, 923 F.2d 873, _____________ ________
881-82 (D.C. Cir. 1991), police officers suspected that a group
of narcotics traffickers was living at and operating out of
several rooms at the Holiday Inn. Id. at 875. Pursuant to a ___
valid search, the officers seized a substantial amount of cocaine
and arrested defendant Halliman. Id. at 876-77. Subsequently, ___
two men entered the hotel lobby and headed for the rooms that had
just been searched. The night manager informed police that the
two men were "in the group" of narcotics traffickers who had been
frequenting the hotel for the past month. The men stopped in
front of one of the rooms in which the cocaine had been seized
-16-
and contemplated the broken lock. The police then arrested them
and seized the cocaine they were carrying. Id. at 877. In ___
upholding the arrest, the court distinguished Ybarra by noting ______
that "the police here were aware of more than a momentary,
casual, or random association among the defendants, the location,
and Halliman." Id. at 882. ___
In Hillison, 733 F.2d at 697, the defendant registered ________
at a hotel under an alias and occupied a room adjacent to two men
known to be engaged in narcotics trafficking. The three men
visited back and forth between the two rooms and used their
automobiles interchangeably. The court found probable cause to
arrest the defendant based on his close association with the drug
traffickers over the course of three days, noting that "it taxes
credulity to assert that [the defendant] spent as much time in
[the drug-traffickers'] company . . . without knowing about their
drug dealing activity." Id. ___
In United States v. Holder, 990 F.2d 1327, 1329 (D.C. _____________ ______
Cir. 1993), the court found probable cause to arrest a defendant
found at the scene of a narcotics transaction. The court's
analysis focused on the fact that the transaction occurred in a
private apartment where the drugs were openly on display. The
court distinguished Ybarra, stating that while Ybarra's "presence ______
in a public tavern was ostensibly innocent, [the defendant's]
presence in a private apartment just a few feet from a table full
of cocaine can hardly be so described. . . . The logical
-17-
inference . . . was that [he] was either a party to the
distribution of drugs or a customer." Id. ___
With these principles in mind, we turn to the claims of
each appellant.
C. Analysis C. Analysis ________
1. Travieso, Maldonado, and Feliciano 1. Travieso, Maldonado, and Feliciano __________________________________
We first consider the claims of appellants Travieso,
Maldonado, and Feliciano. The record indicates that although the
men were in a park near a basketball court, they were neither
dressed to play nor visibly equipped for a social gathering.
Agent Rivera also witnessed Maldonado talking on a cellular
phone, which we have previously noted to be a "known tool[] of
the drug trade." United States v. de la Cruz, 996 F.2d 1307, _____________ __________
1311 (1st Cir.), cert. denied, 114 S. Ct. 356 (1993). While ______________
these facts might not be enough alone to constitute probable
cause, they do weigh in our evaluation of the "totality of the
circumstances." More significant, however, are Agent Rivera's
subsequent observations. He testified that after the black
Pathfinder arrived, the Passenger removed two handbags from the
vehicle and placed them between the white van and gray Cougar.
Agent Rivera testified further that Travieso, Maldonado, and
Feliciano all gathered around as the Passenger handled what
appeared to be packages of cocaine.6 We think that these facts
____________________
6 Appellants argue that Agent Rivera must have fabricated this
testimony because the handbags seized did not contain cocaine and
the packages of cocaine were all ultimately found in locked
suitcases for which the appellants had no keys. Agent Rivera
suggested on cross-examination, however, that the Passenger
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would lead a prudent person to believe that a large-scale cocaine
transaction was transpiring and that Travieso, Maldonado, and
Feliciano were involved. We accordingly hold that their arrests
were supported by probable cause.
2. Rodr guez-Resto, Maysonet, V lez, and Noble 2. Rodr guez-Resto, Maysonet, V lez, and Noble ___________________________________________
We now consider whether the arrests of appellants
Rodr guez-Resto, Maysonet, V lez, and Noble were supported by the
requisite probable cause. All four argue that they were
improperly arrested for their "mere propinquity to others
independently suspected of criminal activity." Ybarra, 444 U.S. ______
at 91. Although a close call, we disagree.
While we acknowledge that the facts here are not
clearly analogous to any of the cases discussed above, they are
completely distinguishable from Ybarra and its progeny in that ______
they indicate more than a "momentary, casual, or random
association" between these four defendants, the location of the
arrest, and those independently suspected of criminal activity.
Applying the first factor enunciated by the Hillison court, we ________
note that the connection between Rodr guez-Resto, Maysonet,
V lez, and Noble and the suspected criminal activity was
contemporaneous: all four were among the original group of men
that initially attracted Agent Rivera's attention by using a
____________________
probably took the handbags with him when he left in the black
Pathfinder. Because this interpretation of the events is
supported by the record, we cannot find the district court's
reliance on it to be clearly erroneous.
-19-
cellular telephone and gathering in street clothes in a public
park. See Hillison, 733 F.2d at 697. ___ ________
With regard to the second Hillison factor, we think it ________
strains credulity to suggest that the cocaine transaction was
being carried on without the knowledge of all persons present.
Id. Admittedly, Rodr guez-Resto, Maysonet, V lez, and Noble were ___
not among the group that gathered around as the Passenger
allegedly handled the packages of cocaine. Nevertheless, Agent
Rivera's testimony clearly indicates that they were part of the
group suspected of narcotics violations. Agent Rivera testified
that the group was bunched tightly and moved towards the
Pathfinder when it arrived, suggesting that they knew or were
expecting its occupants. Furthermore, their lack of either
athletic gear or picnic accoutrements made it less likely that
they were at the park for an unrelated and innocent activity, and
therefore suggested that they were not ignorant of the criminal
activity transpiring around them. Although these facts do not
conclusively rule out the "innocent bystander" explanation, we
think that they reasonably imply participatory involvement. As
the Supreme Court has explained, the evidence "must be seen and
weighed not in terms of library analysis by scholars, but as
understood by those versed in the field of law enforcement."
Gates, 462 U.S. at 232 (quoting United States v. Cortez, 449 U.S. _____ _____________ ______
411, 418 (1981)). We do not think officers in the field are
required to divorce themselves from reality or to ignore the fact
that "criminals rarely welcome innocent persons as witnesses to
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serious crimes and rarely seek to perpetrate felonies before
larger-than-necessary audiences." United States v. Ortiz, 966 ______________ _____
F.2d 707, 712 (1st Cir.1992), cert. denied, 113 S. Ct. 1005 ____________
(1993).7 Accordingly, we find that the arrests of Rodr guez-
Resto, Maysonet, V lez, and Noble were supported by probable
cause.8
____________________
7 Although this observation was made with regard to a
sufficiency-of-the-evidence challenge, we think it also applies
in probable cause determinations.
8 Additional facts strengthen the probable cause finding against
V lez and Rodr guez-Resto.
V lez fled when the Agents approached, and as the Supreme
Court has held, flight at the approach of law enforcement
officers, when coupled with specific knowledge relating the
suspect to evidence of a crime, is a proper factor to be
considered in the decision to make an arrest. See Sibron, 392 ___ ______
U.S. at 66-67; see also United States v. Romero-Carri n, No. 94- ________ _____________ ______________
1792, 1995 WL 258843, at *1 (1st Cir. May 9, 1995) (related case
in which we held that codefendant Romero's flight "evinced a keen
consciousness of guilt"); United States v. Paleo, 967 F.2d 7, 9 _____________ _____
(1st Cir. 1992); United States v. Cruz, 910 F.2d 1072, 1077 (3d _____________ ____
Cir. 1990), cert. denied, 498 U.S. 1039 (1991). ____________
With regard to Rodr guez-Resto, Agent Rivera testified that he
participated in a countersurveillance effort along with
codefendant Romero. It is well settled that countersurveillance
efforts are indicative of knowing participation in criminal
activity. E.g., United States v. Delgado, 4 F.3d 780, 788 (9th ____ _____________ _______
Cir. 1993); United States v. Iafelice, 978 F.2d 92, 95 (3d Cir. _____________ ________
1992); United States v. Taylor, 956 F.2d 572, 578 (6th Cir. 1992) _____________ ______
(reasonable suspicion could be inferred where defendant "had
glanced furtively in every direction as if conducting
'countersurveillance'"). Here, Agent Rivera testified that
Romero and Rodr guez-Resto were "looking around . . . looking
through their rear view mirrors, looking all over the place to
see who's watching them." These observations, while arguably
consistent with innocent driving, were sufficient to allow a
trained officer to infer that Romero and Rodr guez-Resto were
conducting countersurveillance and accordingly support our
probable cause determination. See Iafelice, 978 F.2d at 95 ___ ________
(countersurveillance could be inferred where defendants were
driving very slowly, looking all around, and staring at the
occupants of all the cars they passed).
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3. Pag n 3. Pag n _____
Appellant Pag n also claims that he was arrested for
his "mere propinquity" to the others. We disagree. Although
Pag n arrived after the black Pathfinder had left, his
interaction with Travieso was sufficient for the officers to
infer his participatory involvement in a drug transaction.
Travieso was among the four who had gathered around when the
Passenger handled the suspicious packages taken from the handbags
retrieved from the back of the black Pathfinder. From this,
Agent Rivera could reasonably have concluded that Travieso was
intimately involved with the suspected drug transaction. Agent
Rivera testified that when Pag n arrived in the red Mustang,
Travieso immediately came over and inserted his entire torso into
the car as if he were "searching for something inside the
vehicle." Agent Rivera testified that Travieso then removed an
object which he could not identify from the red Mustang.
Travieso then extracted a green handbag and brought it to the
rear of the red Mustang. Agent Rivera testified that Pag n then
exited the vehicle, headed to the rear, and opened the trunk. A
few seconds later, the trunk was closed and Agent Rivera could no
longer see the green handbag. Pag n then accompanied Travieso,
and they joined the group near the bench. We think that these
events fairly imply participatory involvement. When Pag n
arrived, Agent Rivera already had good reason to suspect that
Travieso was in possession of handbags containing cocaine. When
Travieso immediately retrieved two objects from Pag n's vehicle,
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one of which was a handbag which he apparently transferred to the
trunk, Agent Rivera reasonably could have concluded that Pag n
was also a knowing participant in the drug transaction.9 We
accordingly find that Pag n's arrest was supported by probable
cause.
II. Lawfulness of the Vehicle Searches II. Lawfulness of the Vehicle Searches __________________________________
Appellants challenge the searches of seven of the
eleven vehicles: the black Toyota Supra, the gray Nissan, the
Red Suzuki, the white GMC van, the red Mazda Protege, the gray
Cougar, and the black Lumina.10
The Supreme Court has ruled that an automobile may be
searched without a warrant if the police have probable cause to
believe that it contains contraband, evidence of a crime, or
other matter that may lawfully be seized. California v. Acevedo, __________ _______
500 U.S. 565 (1991); United States v. Ross, 456 U.S. 798 (1982). _____________ ____
As in other contexts, probable cause to search a vehicle exists
where the facts and circumstances known to the arresting officers
are sufficient to cause a person of reasonable caution to believe
the search is justified. United States v. Infante-Ruiz, 13 F.3d _____________ ____________
498, 502 (1st Cir. 1994) (citing 3 Charles Alan Wright, Federal _______
Practice and Procedure: Criminal 2d 662 at 579 (1982)). That ____________________________________
____________________
9 Moreover, the immediacy of Travieso's actions with respect to
Pag n's arrival suggest that Travieso was expecting Pag n and
knew his vehicle contained the handbags.
10 The searches of the remaining vehicles are either not
challenged or are challenged in such a vague and perfunctory
manner that we deem the challenge waived on appeal. See United ___ ______
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 ______ _______ ____________
U.S. 1082 (1990).
-23-
is, there must have been particular facts indicating that, at the
time of search, the vehicle or a container within it carried
contraband, evidence of crime, or other seizable matter. Id. ___
Before addressing whether probable cause existed as to
each vehicle, we note that before they intervened, the arresting
officers had probable cause to believe that the tightly gathered
group in the parking lot was engaged in a large-scale cocaine
transaction. Moreover, when the Agents approached, four members
of the group attempted to flee, suggesting their knowing
participation in illegal activity. Upon searching the arrested
men, the Agents found large amounts of cash and seven plane
tickets for a flight to New York later that afternoon, all issued
under false names. Six suitcases were in plain view in three of
the vehicles. Additionally, six of the vehicles contained
U.S.D.A. stickers, commonly used by smugglers to bypass
agricultural inspection at the airport. From these observations,
a reasonable law enforcement officer could conclude that most, if
not all, of the men were conspiring to transport narcotics into
New York, and that they were using the vehicles parked at the
scene to bring the narcotics to the airport.
A. The black Supra and the gray Nissan A. The black Supra and the gray Nissan ___________________________________
Mart nez claims that his black Supra and gray Nissan
were unlawfully searched. Initially, we note that Mart nez owned
two of the vehicles present at the park, and the police were
-24-
aware of this fact.11 This suggests that his presence with the
other defendants at the park was by design rather than
coincidence and significantly discounts any theory that he had
merely stopped by to chat with some friends. Additionally, when
the Agents intervened, Mart nez fled, discarding a plane ticket
in the process. Moreover, U.S.D.A. Agriculture stickers were in
plain view in the vehicles. We think that these facts would lead
a reasonably prudent person to believe that Mart nez was using
his vehicles to facilitate the narcotics conspiracy. We
accordingly find that the searches of his vehicles were lawful.
B. The red Suzuki B. The red Suzuki ______________
Maldonado maintains that the search of his red Suzuki
jeep was unlawful. We disagree. Agent Rivera testified that two
suitcases and two U.S.D.A. stickers were in plain view in the
vehicle. Putting these observations in the context of the other
observations and events, we think the officers were well
warranted in believing that the vehicle was being used to
facilitate the narcotics conspiracy. We accordingly find that
the search of the red Suzuki was supported by probable cause.
C. The white GMC van C. The white GMC van _________________
Feliciano challenges the search of his white GMC van.
Initially, we note that upon searching Feliciano, the Agents
found an airline ticket issued under a false name, suggesting his
involvement in the drug transaction. Moreover, when Agent Rivera
____________________
11 Before searching the vehicles, the police identified their
owners by questioning the defendants and running computer checks
on the license plates.
-25-
observed the Passenger handling the suspicious packages, he was
squatting between Feliciano's van and the gray Mercury Cougar.
Agent Rivera also noted that the sliding door of the van was open
at this time. After intervention, the agents observed that two
suitcases lay in plain view in the vehicle. These facts all
suggest more than a random connection between the vehicle and the
suspected narcotics trafficking and in light of the circumstances
were sufficient to warrant the officers in believing that the
vehicle contained contraband. We accordingly find that the
search of the van was supported by probable cause.
D. The red Mazda Protege D. The red Mazda Protege _____________________
V lez maintains that the search of the red Mazda
Protege was unlawful. We disagree. Two U.S.D.A. stickers were
in plain view near the dashboard, thus linking the vehicle to the
suspected narcotics trafficking and warranting the Agents' belief
that it contained contraband. We accordingly find that the
search of the red Mazda Protege was supported by probable cause.
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E. The gray Cougar and the black Lumina E. The gray Cougar and the black Lumina ____________________________________
Rodr guez-Rodr guez maintains that the search of the
gray Cougar was invalid. We disagree. The Passenger's handling
of the suspicious packages occurred between the gray Cougar and
the white GMC van. Moreover, the Agents observed that two
U.S.D.A. stickers lay in plain view in the Cougar. In light of
the circumstances, we think that these observations were
sufficient to warrant the officers in believing that the vehicle
was being used to transport narcotics to the airport. We
accordingly find that the search of the gray Cougar was supported
by probable cause.
Rodr guez-Rodr guez also challenges the search of the
black Lumina. While this presents a somewhat closer call, we
think the search was supported by the requisite probable cause.
Admittedly, Rodr guez-Rodr guez arrived in the black Lumina after
the Pathfinder had left the area. He joined the group for only a
few minutes, left in the black Lumina, and returned shortly
thereafter. The Agents did not observe anything being placed in
or withdrawn from the vehicle.
Nevertheless, before searching the vehicles, the Agents
determined that Rodr guez-Rodr guez owned the gray Cougar,12 in
which the Agents had observed U.S.D.A. stickers. This was
sufficient to warrant the Agents' belief that Rodr guez-Rodr guez
was intimately involved in the suspected narcotics trafficking.
____________________
12 The black Lumina was owned by the sister of appellant Pag n.
It is not clear from the record when the Agents learned this.
-27-
Thus, before searching the black Lumina, the Agents reasonably
suspected Rodr guez-Rodr guez of drug trafficking and knew that
he was independently associated with two vehicles at the scene of
the arrest: the one in which he arrived and the one he owned.
These facts, in conjunction with Agent Rivera's previous
observations and the cash and tickets already seized, were
sufficient to warrant the Agents' belief that the black Lumina
was being used to transport narcotics. See McCoy, 977 F.2d at ___ _____
711 (where officers have probable cause to believe that the
suspects used the vehicle in criminal activity, they may
reasonably infer the vehicle contains contraband). We
accordingly find that the search of the black Lumina was
supported by probable cause.
MOTIONS TO WITHDRAW GUILTY PLEAS MOTIONS TO WITHDRAW GUILTY PLEAS
Rodr guez-Resto, V lez, and Travieso all contend that
the district court erred in denying their motions to withdraw
their guilty pleas.
Other than for errors of law, we will overturn the
trial judge's decision to deny a motion to withdraw a guilty plea
only for "demonstrable abuse of discretion." United States v. ______________
Allard, 926 F.2d 1237, 1245 (1st Cir. 1991) (citing United States ______ _____________
v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989)). The trial _________
court's subsidiary findings of fact in connection with the
plea-withdrawal motion are reviewed only for clear error. Id. ___
It is well settled that a defendant may withdraw a
guilty plea prior to sentencing only upon a showing of "fair and
-28-
just reason" for the request. United States v. Cotal-Crespo, 47 _____________ ____________
F.3d 1, 3 (1st Cir. 1995) (citing Pellerito, 878 F.2d at 1537); _________
see also Fed. R. Crim. P. 32(d). To gauge whether the asserted ________
ground for withdrawal meets the Rule 32(d) standard, a court must
look at the totality of the circumstances, especially whether the
defendant's plea was knowing, voluntary, and intelligent within
the meaning of Rule 11. See Cotal-Crespo, 47 F.3d at 3-4; United ___ ____________ ______
States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992); Pellerito, ______ _____ _________
878 F.2d at 1537. Other factors the court may consider include
(1) the plausibility of the reasons prompting the requested
change of plea; (2) the timing of the defendant's motion; and (3)
the existence or nonexistence of an assertion of innocence.
Cotal-Crespo, 47 F.3d at 3-4. Lastly, even where a defendant ____________
appears to meet the strictures of this four-part test, the court
still must evaluate the proposed plea withdrawal in relation to
any demonstrable prejudice that will accrue to the government if
the defendant is permitted to change his plea. United States v. _____________
Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (citing Doyle, _______________ _____
981 F.2d at 594; Pellerito, 878 F.2d at 1537). _________
All three appellants contend that their codefendants
and attorneys coerced them into accepting the package plea
agreement at joint meetings immediately prior to the plea
hearings. It is beyond dispute that a guilty plea is involuntary
and therefore invalid if it is obtained "by actual or threatened
physical harm or by coercion overbearing the will of the
defendant." Brady v. United States, 397 U.S. 742, 750 (1970). _____ ______________
-29-
The Supreme Court has also explained that "a prosecutor's offer
during plea bargaining of adverse or lenient treatment for some
person other than the accused might pose a greater danger of _____
inducing a false guilty plea by skewing the risks a defendant
must consider." Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8 _____________ _____
(1978) (dictum). This concern applies to package plea agreements
because, "[q]uite possibly, one defendant will be happier with
the package deal than his codefendant(s); looking out for his own
best interests, the lucky one may try to force his codefendant(s)
into going along with the deal." United States v. Caro, 997 F.2d _____________ ____
657, 659-60 (9th Cir. 1993). Package plea deals therefore impose
special obligations: the prosecutor must alert the district court
to the fact that codefendants are entering a package deal, Fed.
R. Crim. P. 11(e)(2); United States v. Daniels, 821 F.2d 76, 78- _____________ _______
79 (1st Cir. 1987); see also Caro, 997 F.2d at 659-60, and the ________ ____
district court must carefully ascertain the voluntariness of each
defendant's plea. See United States v. Buckley, 847 F.2d 991, ___ ______________ _______
1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989); ____________
Daniels, 821 F.2d at 79-80; see also Caro, 997 F.2d at 60. _______ ________ ____
Here, it is clear from the record that the district
court was fully aware of the package nature of the defendants'
plea agreements. We nevertheless must determine whether the
district court conducted a proper voluntariness inquiry, or
otherwise erred in concluding that none of the three appellants
had asserted a "fair and just reason" for withdrawing his plea.
A. Rodr guez-Resto A. Rodr guez-Resto _______________
-30-
Before ruling on his motion to change his plea, the
district court heard testimony from Rodr guez-Resto, his
attorney, and Mart nez' attorney. Rodr guez-Resto testified, in
effect, that his attorney would not let him plead not guilty
because it would have destroyed the package deal negotiated for
all of the defendants. Both attorneys testified that Rodr guez-
Resto's guilty plea was entirely voluntary and was in no way
coerced by the threat of nullifying the package deal. In fact,
they testified, they were concerned about the voluntariness of
package plea agreements and consulted with Assistant United
States Attorney Pereira, who stated: "Look, if your client wants
to go to trial, there are three defendants that will go to trial
anyway. So he can go to trial and the agreement will stand for
the rest of the defendants." Both attorneys testified that when
Rodr guez-Resto was informed that he could go to trial without
jeopardizing the package agreement, he again reiterated his
desire to plead guilty.
After hearing this testimony, the district court denied
Rodr guez-Resto's motion to withdraw, stating that his testimony
simply was not credible. The district court found that his
guilty plea had been entered voluntarily and that his claim of
coercion merely reflected second thoughts about the wisdom of his
decision after learning that two codefendants had been acquitted
at trial. These findings are amply supported by the record and
therefore do not constitute clear error. Moreover, we note that
at the original plea hearing, the district court specifically
-31-
asked Rodr guez-Resto whether anyone had forced him to plead
guilty, to which he responded no. Such statements in open court
during a plea hearing "carry a strong presumption of verity."
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Accordingly, we __________ _______
hold that the district court properly denied Rodr guez-Resto's
motion to withdraw his guilty plea.
B. V lez and Travieso B. V lez and Travieso __________________
Both V lez and Travieso maintain that they were coerced
into accepting the package plea agreement. We need not reach the
issue of whether their pleas were in fact coerced because we find
that the district court failed to conduct a full and direct
voluntariness examination in open court, thereby compromising one
of Rule 11's "core concerns" and undermining the validity of
their guilty pleas.13 See Allard, 926 F.2d at 1244-45 ___ ______
(explaining that Rule 11's core concerns are 1) absence of
coercion, 2) understanding of the charges, and 3) knowledge of
the consequences of the guilty plea).
Rule 11(d) states: "The court shall not accept a plea
of guilty or nolo contendere without first, by addressing the __________________
defendant personally in open court, determining that the plea is __________________________________
voluntary and not the result of force or threats or of promises
apart from a plea agreement." Fed. R. Crim. Proc. 11(d)
____________________
13 The district court divided the ten appellants into two groups
of five for the purpose of conducting their plea colloquies.
Rodr guez-Resto was in the first group, and V lez and Travieso
were in the second. Thus, V lez and Travieso were not asked
exactly the same questions that Rodr guez-Resto was asked.
-32-
(emphasis added). Here, the district court conducted only a
partial inquiry into the voluntariness of Travieso's and V lez'
guilty pleas. Specifically, it asked them whether they had
"entered into [the] plea agreement without compulsion or any
threats or promises by the -- from the U.S. Attorney or any of
its agents." It did not, however, ask whether the defendants
were pleading guilty voluntarily or whether they had been
threatened or pressured by their codefendants into accepting the
package plea agreement. Under these circumstances, the district
court's inquiry was incomplete because, regardless of whether
Travieso's and V lez' guilty pleas were actually coerced by their
codefendants, the literal answer to the court's question could
still have been "yes." Admittedly, all the defendants
acknowledged in their written plea agreements that they had not
been threatened or pressured into entering their guilty pleas,
and all testified at the plea hearings that they had answered the
questions in the plea agreements truthfully after consultation
with their attorneys. In many situations, however, "reliance on
'a written document is not a sufficient substitute for personal
examination [by the court].'" United States v. Medina-Silveria, _____________ _______________
30 F.3d 1, 3 (1st Cir. 1994) (quoting James W. Moore, 8 Moore's _______
Federal Practice 11.-05[2] (1994)) (other citations omitted). ________________
The Supreme Court has similarly expressed the importance of
direct interrogation by the district court judge in determining
whether to accept the defendant's guilty plea:
To the extent that the district judge
thus exposes the defendant's state of
-33-
mind on the record through personal
interrogation, he not only facilitates
his own determination of a guilty plea's
voluntariness, but he also facilitates
that determination in any subsequent
post-conviction proceeding based upon a
claim that the plea was involuntary.
Both of these goals are undermined in
proportion to the degree the district
judge resorts to "assumptions" not based
upon recorded responses to his inquiries.
McCarthy v. United States, 394 U.S. 459, 467 (1969). ________ _____________
Where a district court has only partially addressed one
of Rule 11's core concerns, we must reverse a determination that
there was no fair and just reason to set the plea aside unless
the irregularities in the plea proceeding do not affect
"substantial rights" of the defendant. See Cotal-Crespo, 47 F.3d ___ ____________
at 7 (discussing application of Rule 11(h)'s harmless error
standard when plea-taking errors result in a "partial failure" to
address one of Rule 11's core concerns). Because package-type
plea agreements increase the risk that one defendant will coerce
another to plead guilty, the district court was obligated to
ascertain carefully whether the defendants were in fact entering
their pleas without compulsion. See Daniels, 821 F.2d at 79-80; ___ _______
United States v. Buckley, 847 F.2d at 1000 n.6. Here, the ______________ _______
district court made no effort whatsoever to determine whether
Travieso's and V lez' pleas were coerced. Under these
circumstances, we cannot say that they lacked a fair and just
reason for plea withdrawal, especially since the court's lapse
arguably affected their substantial rights. The advisory
committee's notes make clear that Rule 11(h) "was not intended to
-34-
allow district courts to ignore Rule 11['s] express commands."
Medina-Silveria, 30 F.3d at 4 (citation omitted). Rather, Rule _______________
11(h)'s harmless error provision is intended to excuse "minor and
technical violation[s]" and cannot be invoked where the court's
deviation effectively "nullif[ies] important Rule 11 safeguards."
Fed. R. Crim. Proc. 11(h) advisory committee's note to 1983
amendment. V lez' and Travieso's guilty pleas must therefore be
set aside and the case must be remanded for further Rule 11
proceedings or trial.
INEFFECTIVE ASSISTANCE OF COUNSEL INEFFECTIVE ASSISTANCE OF COUNSEL
On the morning of the suppression hearing, Pag n's
attorney moved for a continuance because her presence was
required at another hearing. The court denied the motion, noting
that a continuation would be logistically implausible because of
the large number of defendants, attorneys, and witnesses present
for the hearing. After consulting with Pag n, his attorney asked
Travieso's attorney to cover for her during the suppression
hearing. Pag n's attorney returned shortly after the court had
begun ruling on the motions to suppress. After denying the
motions, the court agreed to allow the defendants to file motions
to reconsider and to provide Pag n's counsel with a transcript of
the hearing. Although the court later extended the deadline for
filing motions, Pag n never sought reconsideration.
Pag n now contends that the court erred by denying his
motion for a continuance, and that as a result of this error, he
was denied effective assistance of counsel. We need not wax
-35-
longiloquent on this contention. United States v. Talladino, 38 _____________ _________
F.3d 1255, 1261 (1st Cir. 1994). Initially, we note that Pag n
points to nothing in the record that would suggest that the
district court abused its discretion in denying the continuance.
See United States v. Rodr guez-Cort s, 949 F.2d 532, 545 (1st ___ _____________ ________________
Cir. 1991) (refusal to grant a continuance is reviewed for abuse
of discretion, and only "unreasonable and arbitrary insistence
upon expeditiousness in the face of a justifiable request for
delay" constitutes an abuse of discretion). Moreover, Pag n's
ineffective-assistance-of-counsel claim is utterly untenable
given the extensive cross-examination conducted by the defense
counsel for his eleven codefendants. Additionally, we note that
even after receiving the transcripts of the hearing, Pag n's
counsel did not move for reconsideration, suggesting that she was
then satisfied with the record developed by the other attorneys.
In fact, Pag n still has not explained what additional questions
his counsel would have asked Agent Rivera at the suppression
hearing. We accordingly reject Pag n's ineffective-assistance-
of-counsel claim.14
We have explored the other claims raised by the
appellants and find them equally meritless.
Affirmed in part, reversed in part. Affirmed in part, reversed in part. __________________________________
____________________
14 Although we ordinarily refrain from entertaining ineffective-
assistance-of-counsel claims on direct review, see United States ___ _____________
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), we have elected to ____
reach Pag n's claim because the record is sufficiently well
developed to permit ajudication and the claim is bound up in the
claim for denial of a continuance -- a claim that is properly
before us.
-36-