USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1236
UNITED STATES,
Appellee,
v.
AMADOR IRIZARRY-SANABRIA,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
_____________________
J. Michael McGuinness, by Appointment of the Court, for ______________________
appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with ________________________
whom Guillermo Gil, United States Attorney, and Nelson P rez- ______________ ______________
Sosa, Assistant United States Attorney, were on brief for ____
appellee.
____________________
August 22, 1996
____________________
Per curiam. Defendant-Appellant Amador Irizarry- Per curiam. ___________
Sanabria pled guilty to conspiracy to import marijuana into the
United States, in violation of 21 U.S.C. 952 & 963. For the
reasons stated herein, we affirm.
BACKGROUND BACKGROUND
Irizarry-Sanabria was indicted in March of 1993 and
pled not guilty at his arraignment. His motion to dismiss on
double jeopardy grounds, premised on a previous conviction of
conspiracy to import marijuana,1 was denied. In October 1993,
Irizarry-Sanabria entered a change of plea to guilty pursuant to
a plea agreement. In December 1993, he filed a pro se motion _______
seeking a withdrawal of that plea; his counsel filed a motion in
support of the pro se motion and memorandum of law in February ______
1994. The district court denied the motion to withdraw plea,
without an evidentiary hearing. Irizarry-Sanabria was sentenced
to 121 months imprisonment.
DISCUSSION DISCUSSION
A. Motion to Withdraw Guilty Plea A. Motion to Withdraw Guilty Plea ______________________________
We review the court's refusal of Irizarry-Sanabria's
motion to withdraw his guilty plea, made prior to sentencing, for
abuse of discretion. See United States v. Tilley, 964 F.2d 66, ___ _____________ ______
72 (1st Cir. 1992). To prevail, Irizarry-Sanabria must persuade
the court that he has shown a "fair and just reason" for his
request. Fed. R. Crim. P. 32(e). We follow an establishedtest:
____________________
1 His conviction for the first conspiracy was affirmed by this
court in United States v. And jar, 49 F.3d 16 (1st Cir. 1995). _____________ _______
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A court must consider several factors in
weighing whether a defendant meets this
burden,
the most significant of which is
whether the plea was knowing,
voluntary and intelligent within
the meaning of [Federal Rule of
Criminal Procedure] 11. 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.
United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996) (quoting _____________ ____
United States v. Cotal-Crespo, 47 F.3d 1, 3-4 (1st Cir.), cert. _____________ ____________ _____
denied, __ U.S. __, 116 S. Ct. 94 (1995) (citation omitted)). If ______
defendant meets the rigors of this test, we evaluate whether the
government will suffer any demonstrable prejudice. See id. ___ ___
First, we find, and counsel for defendant admitted at
oral argument, that the Rule 11 plea colloquy was thorough and
comprehensive. Irizarry-Sanabria argues that his plea was
nonetheless not knowing, voluntary and intelligent because it was
made under duress, due to the pressure of his attorney. However,
during the colloquy, Irizarry-Sanabria denied that he had been
coerced to accept the plea bargain, acknowledged that he had
discussed its terms with counsel, and affirmed that he was
satisfied with his legal representation. "Such statements in
open court during a plea hearing 'carry a strong presumption of
verity.'" United States v. Mart nez-Molina, 64 F.3d 719, 733 ______________ _______________
(1st Cir. 1995) (quoting Blackledge v. Allison, 431 U.S. 63, 74 __________ _______
(1977)). The pro se motion offers nothing more than a conclusory ______
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statement that the plea was "made under duress, due to the
urgency and pressure of all the [co-defendants'] attorneys of
this case," including Irizarry-Sanabria's counsel. In denying
the motion, the district court noted that Irizarry-Sanabria was
informed at the change of plea hearing that he could proceed to
trial that same day if he chose, and commented that he was
"alert, calm, confident and knowledgeable of his rights," and
"never showed any hesitancy or reservation about his desire to
plead guilty." Order at 6. In these circumstances, where we
have a thorough, comprehensive Rule 11 colloquy on one hand, and
a naked conclusory claim of duress unsupported by any allegations
of fact on the other, we find that Irizarry-Sanabria's eleventh-
hour claim of duress lacks merit, and accordingly find that his
plea was made knowingly, voluntarily and intelligently within the
meaning of Rule 11.
Our second factor weighs the force and plausibility of
the proffered reasons. We have already weighed the duress claim;
we briefly examine Irizarry-Sanabria's other asserted reasons.
First, Irizarry-Sanabria claims he is innocent, and that he could
prove it, without specifying anything regarding the nature of
such proof. At the same time, during the change of plea hearing
he corrected the court's account of the events of the conspiracy
several times, clarifying what his participation had been. In
such circumstances, we find that the district court did not abuse
its discretion by "refusing to give weight to a self-serving,
unsupported claim of innocence." United States v. Ramos, 810 ______________ _____
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F.2d 308, 313 (1st Cir. 1987) (finding that defendant's claim of
innocence lacked merit where he did not assert innocence at
change of plea hearing and did not substantiate his claim of
exculpatory evidence); see Isom, 85 F.2d at 837 (rejecting ___ ____
defendant's pro se motion asserting innocence where no ________
information was provided regarding alleged exculpatory evidence,
and defendant provided specific information regarding the events
of the crime at Rule 11 hearing).
Second, Irizarry-Sanabria's claim that he did not have
access to the files on the case gives us little pause, given the
thoroughness of the Rule 11 hearing and the fact that Irizarry-
Sanabria does not offer any indication of what he expects to find
in the files, or what prejudice he has suffered. Similarly, his
claim that his requests for legal assistance "in this matter" --
presumably, his motion and claim of innocence and duress -- had
been to no avail is unconvincing, as his attorney followed up the
pro se motion with a motion in support and memorandum of law. ______
As for the timing of the motion, almost two months
elapsed between the change of plea hearing on October 21, 1993,
and Irizarry-Sanabria's pro se motion of December 15, 1993. We _______
have previously found that such a delay weighs against
defendant's position.2 See, e.g., Isom, 85 F.3d at 839 (two- ___ ____ ____
____________________
2 Appellant argues that this measure ignores the fact that
Irizarry-Sanabria's change of heart undoubtedly occurred at some
time prior to the date of service. Nonetheless, in such cases we
take as our measure the date of the motion to withdraw the plea,
regardless of when the defendant's subjective decision was
actually made. See Isom, 85 F.3d at 838-39 (collecting cases). ___ ____
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month delay); United States v. Pellerito, 878 F.2d 1535, 1541 _____________ _________
(1st Cir. 1989) (eight week delay); United States v. Crosby, 714 _____________ ______
F.2d 185, 192 (1st Cir. 1983) (eight week delay), cert. denied, ____________
464 U.S. 1045 (1984).
As for the final two factors, we note, first, that
Irizarry-Sanabria has claimed his innocence. Nonetheless, "the
mere protestation of legal innocence cannot in and of itself be
issue-determinative." United States v. Kobrosky, 711 F.2d 449, ______________ ________
455 (1st Cir. 1983). Second, the parties reached a plea
agreement, which neither alleges has been broken.
As our analysis of all the factors weighs heavily in
favor of the district court's decision, we need not address
whether granting the motion would result in prejudice to the
government before affirming the decision below.
Irizarry-Sanabria asserts that the district court erred
in denying him an evidentiary hearing to factually bolster his
claims. However, we note that
evidentiary hearings on motions are the
exception, not the rule. We have
repeatedly stated that, even in the
criminal context, a defendant is not
entitled as of right to an evidentiary
hearing on a pretrial or posttrial
motion. Thus, a party seeking an
evidentiary hearing must carry a fairly
heavy burden of demonstrating a need for
special treatment.
United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993) ______________ ______
(citations omitted). Irizarry-Sanabria's naked conclusory
statements offer us no basis for finding that the district court
abused its discretion in not holding an evidentiary hearing on
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his claims. See, e.g., Ramos, 810 F.2d at 314; Kobrosky, 711 ___ ____ _____ ________
F.2d at 457; see also Isom, 85 F.3d at 838 (collecting cases). ________ ____
On appeal, counsel for defendant argues that "most
individuals" are too intimidated by the circumstances of a Rule
11 plea colloquy to stop and tell the court that they have been
coerced into pleading guilty. Such generalizations do not
persuade us that the district court abused its discretion in
making its decision -- a decision "facilitated because the judge
has overseen pretrial proceedings, conducted the Rule 11
inquiries, accepted the original guilty plea, and heard at first
hand the reasons bearing upon its withdrawal." Pellerito, 878 _________
F.2d at 1538. Indeed, the fact that during the Rule 11 colloquy
Irizarry-Sanabria corrected the court's account of the events on
several points belies the image of a timid defendant.
We are given more pause by appellant's contention, made
at oral argument, that a potential conflict arises because the
counsel who Irizarry-Sanabria alleges put him under duress also
helped him litigate the motion for withdrawal of his guilty plea.
However, in this circumstance, where we have a complete and
detailed plea colloquy, a detailed order denying the motion, and
only the most sparse allegations on the part of Irizarry-
Sanabria, we cannot find that the district court abused its
discretion, even taking into account the pro se nature of _______
Irizarry-Sanabria's motion.
B. Double Jeopardy Claims B. Double Jeopardy Claims ______________________
Irizarry-Sanabria next argues that the district court
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erred in failing to dismiss the indictment against him because he
had previously been found guilty in a case involving the same
conspiracy. He alleges that the indictment in this case amounts
to prosecuting a single conspiracy as two separate conspiracies,
in violation of his double jeopardy guarantee. However, we find
that under Local Rule 510.2 of the District of Puerto Rico, he
has waived this argument by failing to object to the magistrate
judge's report and recommendation in writing within ten days, as
the report and recommendation warned. See United States v. ___ _____________
Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) (after proper _______________
notice, failure to file a specific objection to magistrate's
report will waive the right to appeal); see, e.g., Henley ___ ____ ______
Drilling Co. v. McGee, 36 F.3d 143, 151 (1st Cir. 1994); Borden ____________ _____ ______
v. Secretary of Health and Human Services, 836 F.2d 4, 6 (1st ________________________________________
Cir. 1987).
Although we acknowledge an appellate court's discretion
to excuse waiver "in the interests of justice," see Thomas v. ___ ______
Arn, 474 U.S. 140, 155 & n.15 (1986), in this case we find no ___
basis for such action because we conclude that Irizarry-
Sanabria's arguments likely would not prevail on the merits. We
weigh five factors in determining whether two charged conspiracy
are actually one for double jeopardy purposes: the timing; the
personnel; the locations involved; the evidence used; and whether
the same statutes were implicated. See United States v. G mez- ___ ______________ ______
Pab n, 911 F.2d 847, 860 (1st Cir. 1990), cert. denied, 498 U.S. _____ ____________
1074 (1991). The only facts Irizarry-Sanabria points to in
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arguing that there are two distinct conspiracies here are that
they both involve the same amount of marijuana, and that they
occurred within several weeks of each other. However, given that
it was not the same shipment of marijuana, that it was not the
same Colombian supplier, that the only common participants were
the defendant and a confidential informant Irizarry-Sanabria
introduced to his co-conspirators, and that the importation route
was different, see And jar, 49 F.3d at 18-19 (setting out facts), ___ _______
we are hard pressed to see how these two conspiracies would be
viewed as one.
C. Other Claims C. Other Claims ____________
Irizarry-Sanabria also alleges that the government
should have been collaterally estopped from relitigating these
issues. However, he does not specify what ultimate fact he
contends has been resolved in his favor. Similarly, he argues
that his substantive due process rights were violated by
prosecution for conduct that he was already convicted of, and
that the totality of the trial court's errors and the cumulative
effect thereof constituted prejudicial error, depriving him of
his due process, both without pointing to any error. To the
extent that these arguments have not already been deemed waived
under our double jeopardy holding, we now find them waived, as
"[i]t is not enough merely to mention a possible argument in the
most skeletal way, leaving the court to do counsel's work, create
the ossature for the argument, and put flesh on its bones."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. ______________ _______ _____
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denied, 494 U.S. 1082 (1990); see, e.g., Damon v. Sun Co., 87 ______ ___ ____ _____ _______
F.3d 1467, 1485 (1st Cir. 1996).
CONCLUSION CONCLUSION
For the reasons presented above, the decision of the
district court is affirmed. affirmed ________
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