United States Court of Appeals
For the First Circuit
No. 00-1325
UNITED STATES,
Appellee,
v.
RONALD ANTHONY ABBOTT, a/k/a,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge
Coffin and Campbell, Senior Circuit Judges.
Frank D. Inserni, by appointment of the Court, for
appellant.
Edwin Vazquez Berrios, Criminal Division, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Chief, Criminal Division, Nelson Perez-Sosa, Assistant United
States Attorney, were on brief for appellee.
February 23, 2001
CAMPBELL, Senior Circuit Judge. Defendant-Appellant
Ronald Abbott (“Abbott”) appeals from the denial of his motion
to withdraw his guilty plea. He also appeals from the denial of
his motions (1) to change venue and (2) for discovery of grand
jury minutes pursuant to Rule 12 and Rule 6(e)(3)(c)(ii), and to
dismiss the indictment for insufficiency of the evidence.
Because we hold that one of the core concerns of Rule 11 was
violated, to wit, voluntariness, Abbott must be allowed to
withdraw his plea. As the district court’s denial of Abbott’s
additional motions relied on the validity of his guilty plea, we
vacate the denials and direct the district court to reconsider
those motions to the extent material after remand.
I. BACKGROUND
The relevant facts are as follows. On September 14,
1996, at a gun show in Miami, Florida, Abbott agreed to purchase
a MAADI, 7.62 caliber assault rifle, serial number AC0068536,
for an acquaintance who was also at the gun show, a Mr. Luis O.
Rodriguez-Navarro (“Rodriguez-Navarro”). The following day,
upon deplaning a flight from Miami to San Juan, Puerto Rico,
Rodriguez-Navarro and his traveling companion, Orlando Ramos-
Rivera (“Ramos-Rivera”) (who was also at the gun show) were
arrested at the Luis Munoz Marin International Airport in San
Juan. In their possession were three suitcases containing
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fourteen firearms, among them the MAADI assault rifle procured
for them by the defendant Abbott.
Abbott was on the same flight from Miami to San Juan,
but he was neither detained nor arrested until February 20,
1997, five months later, in his home town of Del Rio, Texas.
The indictment dated February 12, 1997, charged Abbott with four
firearm-related counts, all directly related to the seizure of
the fourteen firearms from the suitcases of Ramos-Rivera and
Rodriguez-Navarro on September 15, 1996. They are: two counts
of unlawfully dealing in firearms in violation of 18 U.S.C. §
922(a)(1)(A) (counts I and III); transferring firearms to a non-
resident in violation of 18 U.S.C. § 922(a)(5) (count II); and
possessing firearms with obliterated serial numbers in violation
of 18 U.S.C. § 922(k) (count IV). Only counts I and II
mentioned the MAADI rifle transferred at the Miami gun show.
Sometime in April, unable to make bail and after having
been transferred from Texas to Puerto Rico, Abbott wrote a
letter to a young woman inquiring if “Luis [Rodriguez-Navarro]
or Orlando [Ramos-Rivera] said anything.” In that same letter,
Abbott told the young woman that if asked about her knowledge
concerning the circumstances of Abbott’s arrest, she needn’t say
anything. Around the same time, Abbott telephoned his mother,
Judith Baerga Abbott, with the request that she contact the same
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young woman to whom he had written and suggest to the young
woman that should she be questioned about the circumstances of
his arrest, she wasn’t to remember anything. Judith Baerga
Abbott placed the phone call and fulfilled her son’s request.
Within the month, on April 30, 1997, a superceding
indictment issued against Abbott, adding a fifth count charging
him with witness tampering, and also adding his mother as a co-
defendant, charging her with witness tampering as well (count
VI). Judith Baerga Abbott was arraigned on May 1, 1997, and
released on bond of $35,000 three weeks later. The case of the
United States versus Ronald Abbott and Judith Baerga Abbott was
set for a jury trial on September 3, 1997, when, on August 27,
1997, Ronald Abbott moved to change his plea. His mother
followed suit a week later on September 2, 1997. On October 9,
1997, Chief Judge Carmen Cerezo accepted the guilty pleas of
both Ronald Abbott and Judith Baerga Abbott. After taking
Ronald Abbott’s plea of guilty to Count I (all other counts were
dismissed pursuant to a plea agreement), the district court
accepted his mother’s plea of guilty to count VI, the only count
against her. The substance of this appeal concerns the
sufficiency of that Rule 11 colloquy between the district court
and Ronald Abbott, the factual details of which precede the
legal analysis in Part II infra.
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A brief recitation of the subsequent procedural history
will help clarify matters. On January 16, 1998, Ronald Abbott
filed a motion to, among other things, change venue and withdraw
his guilty plea on the ground that it was involuntary. On
February 13, 1998, Judith Baerga Abbott was sentenced to two
years of probation. On May 18, 1998, the district court denied
Abbott’s motion to withdraw his guilty plea and denied as moot
his motion to change venue. A flurry of motions to reconsider
and to change conditions of release pending sentencing were
filed, denied and appealed. Abbott’s sentencing hearing was
continued over the course of nearly two years due to
disagreements about, among other things, the contents of the
Pre-Sentence Report. On May 24, 1999, still not sentenced,
Abbott filed a motion for discovery of grand jury minutes in
order to challenge the indictment. On June 1, 1999, the
district court summarily denied the motion. After taking
evidence bearing on Abbott’s sentence, on January 14, 2000,
Chief Judge Cerezo sentenced Ronald Abbott to 46 months in
prison and three years of supervised release.
Ronald Abbott filed a notice of appeal on January 21,
2000. As of August 21, 2000, the day his brief was filed with
this court, counsel for Ronald Abbott represented that Abbott
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had finished serving his jail time and was successfully carrying
out the terms of his supervised release.
II. ANALYSIS
Abbott’s central contention is that his guilty plea was
coerced. He asserts that during plea negotiations the
government offered to recommend that his mother, upon a plea of
guilty to Count VI, serve no jail time if Abbott would plead
guilty to Count I. The government would then drop the remaining
four counts against him. Abbott characterizes the government’s
offer as a “package deal” -- i.e., conditioning the acceptance
of his mother’s guilty plea and her recommended sentence on
Abbott’s plea of guilty -- the details of which were not
disclosed to the district court, contrary to the mandate of Rule
11. See Fed. R. Crim. P. 11(d) (“The court shall not accept a
plea of guilty . . . without first . . . 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(e)(2) (“If a plea agreement has been reached by the parties,
the court shall, on the record, require the disclosure of the
agreement in open court. . . .”).
The plea agreements between the government and Ronald
Abbott and the government and Judith Baerga Abbott that were
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submitted to the district court in preparation for the Rule 11
hearing on October 9, 1997 do not mention any linkage between
the co-defendants’ pleas. As reflected by the record in this
case, however, after Ronald Abbott pled guilty to Count I,
Judith Baerga Abbott pled guilty and, upon the government’s
recommendation pursuant to her plea under Fed. R. Crim. P.
11(e)(1)(C) 1, she was sentenced to only two years probation.
When, later, Ronald Abbott moved to withdraw his plea as being
involuntary, the government responded by acknowledging in its
Response filed with the court that “during the negotiation
process, the pleas of both defendants were linked to some
degree. During negotiations, the United States indicated its
belief that a plea agreement which reflected a degree of
leniency with respect to co-defendant Judith Baerga, the
defendant’s mother, may be appropriate.” The government then
went on to defend its non-disclosure of the self-styled
“leniency” toward Judith Baerga Abbott by saying that “[w]hile
the United States indicated that it would be inclined to be more
lenient with the defendant’s mother were he to plead guilty, it
did not consider the plea agreements to be a ’package deal’
1
When a defendant agrees to enter a plea pursuant to
Federal Rule of Criminal Procedure 11(e)(1)(C), she does so in
light of the government’s express promise that the government
will “agree that a specific sentence [in this case probation]
... is the appropriate disposition of the case.”
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within the legal sense.” At issue now is whether the failure of
the government to disclose to the court at the Rule 11 hearing
that the two pleas were linked in the way the government
describes renders Abbott’s plea of guilty involuntary. We hold
that it does.
Withdrawal of a guilty plea prior to sentencing may be
granted for any “fair and just reason.” Fed. R. Crim. P. 32(e).
The district court is to apply this standard liberally. We
reverse the district court only for abuse of discretion. See
United States v. Daniels, 821 F.2d 76, 78 (1st Cir. 1987). We
have said, however, that in the Rule 11 context, when any one of
its so-called “core concerns” is implicated, a concern such as
whether the plea was coerced and not voluntary, see United
States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995),
“’discretion’ may be somewhat more limited,” United States v.
Raineri, 42 F.3d 36, 41 (1st Cir. 1994).
Full disclosure to the district court of the material
terms of plea agreements is necessary to insure that the Rule 11
colloquy is thorough and searching as to defendant’s knowing,
intelligent and voluntary waiver of the right, among others, to
a jury trial. See McCarthy v. United States, 394 U.S. 459, 466
(1969) (stating that for a guilty plea to be valid, due process
requires that the plea amount to a voluntary and “intentional
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relinquishment or abandonment of a known right or privilege”).
Package deals pose particular problems with regard to
voluntariness 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. Martinez-Molina, 64 F.3d 719, 733 (1st Cir. 1995)
(quoting United States v. Caro, 997 F.2d 657, 659-60 (9th Cir.
1993)). The Supreme Court has noted that tying co-defendants’
pleas together “might pose a greater danger of inducing a false
guilty plea by skewing the assessment of the risk a defendant
must consider.” Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8
(1978). For these reasons, the disclosure of the existence of
a package plea deal is crucial at the Rule 11 hearing so that
the district court may probe as deeply as needed into the
possibility that one defendant is pleading guilty against his
will in order to make it possible for his co-defendant to obtain
the benefit of a favorable plea and sentencing recommendation.
See Martinez-Molina, 64 F.3d at 733 (stating that “[p]ackage
plea deals therefore impose special obligations: the prosecutor
must alert the district court to the fact that codefendants are
entering a package deal, and the district court must carefully
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ascertain the voluntariness of each defendant’s plea”)(citations
omitted).
The transcript of the Rule 11 colloquy in this case
shows no awareness at the time by the district court of the
connection between Abbott’s plea and his mother’s plea. The
district court, therefore, would have had no reason to conduct
a more searching inquiry into whether Ronald Abbott was
voluntarily pleading guilty or whether he was pleading guilty
mainly to help his mother. Cf. id. (where one question before
the court was whether, in view of the district court’s knowledge
during the plea hearing of the existence of a package deal, the
court conducted a thorough voluntariness inquiry in light of the
potential coercive aspects of the agreement). The Rule 11
transcript evidences at best a cursory dialogue regarding
voluntariness.
In contrast to the government’s failure to reveal at
the Rule 11 hearing the linkage between the two pleas, the
government later conceded in its Response to Abbott’s motion to
withdraw his guilty plea that there was such a linkage. In that
Response, the government admitted to the district court that the
two pleas were linked and that “the defendant may have felt that
his plea of guilty would, to some degree, benefit his mother.”
The court also had before it a report from a clinical
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psychologist of an interview with Abbott taken six weeks after
his guilty plea during which Abbott claimed to have “pled guilty
to the charge against him to help his mother.” The government,
in fact, did not at this time oppose Abbott’s motion to withdraw
his guilty plea. To the contrary, the government told the
district court that it “[b]elieves that prudence counsels in
favor of permitting the defendant to withdraw his guilty plea.”2
Notwithstanding that recommendation by the prosecution, the
district court denied Abbott’s motion to withdraw his guilty
plea.
In denying defendant’s motion, the district court
appears to have accepted as true Abbott’s claim that he pled
guilty to prevent his mother from going to prison. The district
court also recognized the relevant factor that in his motion to
withdraw Abbott asserted a claim of innocence. See United
States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996) (citing as
relevant when considering a defendant’s motion to withdraw a
guilty plea under Rule 32(e) the following four factors: (1)
2 At oral argument of this appeal, the government said that
this response was based on the fact that it was ready for trial
and that it would suffer no prejudice should the judge grant
defendant’s motion. While certainly this may have been a
factor, it was not the reason given by the government to the
district court in its Response to Abbott’s motion to withdraw.
In the Response, the government virtually conceded that Abbott
may have felt coerced into pleading guilty in order to save his
mother from serving a jail sentence.
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the plausibility and weight of the proffered reason; (2) the
timing of the request; (3) whether the defendant asserted legal
innocence; and (4) whether the parties had reached, or breached,
a plea agreement). Nevertheless, the district court weighed
heavily the fact that the defendant “under oath, stated that the
plea was being made knowingly and voluntarily.” The district
court also apparently considered it significant that Abbott
“waited to raise this issue after his mother was sentenced and
benefitted from her plea agreement.” 3 Echoing the district
court’s reasoning, the government now argues on appeal that
because Abbott got the benefit of the bargain – his mother
stayed out of jail – he cannot now be heard to complain that his
plea was involuntary. This argument turns the rule of
voluntariness on its head.4
3
On this point, the district court’s statement seems to be
an erroneous reading of the record. By our reading, Ronald
Abbott moved to withdraw his guilty plea in a self-styled
“Emergency Motion” filed on January 16, 1998, and Judith Baerga
Abbott was sentenced to two years probation nearly a month
afterwards on February 13, 1998.
4
To say the plea must have been voluntary because Abbott
received the benefit of a secret deal – kept secret from the
judge thereby preventing a more thorough-going inquiry
concerning voluntariness – suggests that all bargains that are
adhered to, no matter the imbalanced nature of the negotiations,
are voluntary. This is not the law, either in civil or criminal
cases.
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We recognize that Abbott remained silent during the
Rule 11 hearing regarding the connection between his plea and
his mother’s plea. In the circumstances, however, Abbott could
well have believed that only by keeping quiet as to the linkage
would he prevent his mother from going to jail. He may have
thought that if the bargain were disclosed his own plea would be
rejected and his mother would be tried and sentenced to prison.
An undisclosed bargain such as the instant one carries with it
a serious possibility of coerciveness. This is why the
prosecution must shoulder the burden of disclosing, in the first
instance, all material information of plea agreements, including
a package deal like this one. See Martinez-Molina, 64 F.3d at
733; Caro, 997 F.2d at 659 & n.2 (announcing as a rule that it
is the prosecutor’s duty to “alert the district court to the
fact that co-defendants are entering a package deal”).
This is not a case in which belated assertions of
involuntariness lacked any “affirmative eviden[tiary]” support.
United States v. Marrero-Rivera, 124 F.3d 342, 349 (1st Cir.
1997). The evidence before the district court filed in support
of and in response to defendant’s motion to withdraw rebuts the
presumption accorded the sworn statements of defendants during
Rule 11 hearings. See Martinez-Molina, 64 F.3d at 733. Faced
with the undisputed fact that the two pleas were linked and with
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the government’s admission, for which it is to be commended,
that it would suffer no prejudice should the motion be granted,
it was clear error to deny defendant’s motion to withdraw absent
a hearing on the issue to make further inquiries into the
voluntariness of Abbott’s plea.
Our conclusion of coercion and involuntariness is
further necessitated by relevant case law in this circuit, case
law that was not cited to or by the district court. In United
States v. Daniels, this court reversed a denial of a motion to
withdraw a guilty plea due to the government’s failure to
disclose the linkage of co-defendants’ guilty pleas. See
Daniels, 821 F.2d at 77. In Daniels, we found the prosecutor’s
nondisclosure, in light of (1) the swiftness with which one
defendant moved to withdraw his plea and (2) his protested
innocence at the change of plea hearing, enough that a “fair and
just” reason existed to allow the defendant to withdraw his
plea. Id. at 79-80.
The circumstances of the present case are not unlike
those in Daniels. Like the defendant in Daniels who was caught
between loyalty to his brother and his own future, Abbott was
presumably struggling with loyalty to his mother and a lengthy
prison sentence. Like the Rule 11 colloquy in Daniels in which
the defendant provided suspiciously reluctant and halting
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responses to questions regarding voluntariness and the truth of
the facts underlying the government’s case against him, see id.
at 79, Abbott protested his innocence at length, evidencing
confusion and resistance to the proceeding in which his knowing
assent was required.
Q: Did you commit the offense
charged in Count One, Mr. Abbott?
A: Your Honor, I’m pleading guilty
for selling one rifle at the regular
gun show. For the -- I’m pleading
guilty for that part of it . . .
. . . .
Q: Paragraph three says that before
arriving at the Luis Munoz Marin
International Airport, Rodriquez-
Navarro and Ramos-Rivera, who both
reside in Puerto Rico, flew to Miami,
Florida, to obtain firearms, which
they did. And that they imported
those weapons into Puerto Rico to
distribute them. Did you know that
they were doing that?
. . . .
A. No, Your Honor.
Your Honor, I sold one rifle to
these -- to one person. As far as
everything else that they put in
here, I have no knowledge of that.
But I’m being accused of it because I
sold one rifle which ties me to the
14. But as far as selling 14
weapons, no.
I sold one rifle at the show,
which was legal in the State of
Florida, which is considered illegal
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in Puerto Rico, and that’s what I’m
pleading guilty to.
As in Daniels, “disclosure of the government’s all-or-nothing
negotiating position might well have led the court to
investigate further into possible coercion by appellant’s
codefendants. Further investigation would have produced a
fuller record . . . with which to assess the voluntariness of
the plea.” Id. at 89. See also McCarthy, 394 U.S. at 465
(noting that the procedures established in Rule 11 are “intended
to produce a complete record at the time the plea is entered of
the factors relevant to his voluntariness determination”).
The government contends that the terms of Abbott’s plea
were not the kind of “all-or-nothing” deal with which the
defendant in Daniels was faced. Strictly speaking, the
government says, the linkage between Abbott’s plea and his
mother’s is not a “package deal” as they were not identical
pleas and because they were filed pursuant to different
statutes. The government also offers as proof of the
independence of the pleas the fact that when Abbott moved to
withdraw his plea, his mother’s plea was not adversely affected.
But the government cites no case law that would support the
proposition that the two separate plea agreements binding two
separate defendants be identical in order to qualify as a
“package deal.” And the fact that the government did not renege
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on its deal with Judith Baerga Abbott even after her son filed
a motion to withdraw his guilty plea proves only that the
government adhered to the terms of its written plea agreement
with Judith Baerga Abbott, not that there was no coercive
linkage between the two agreements as originally signed and
accepted by the district judge during the Rule 11 hearings.
In the end, the government’s failure to bring to the
judge’s attention the fact that the two guilty pleas that she
was accepting were tied to one another, viz, conditioning the
acceptance of Judith Baerga Abbott’s guilty plea and the lenient
sentence of probation on her son’s plea of guilty to Count I,
rendered the Rule 11 colloquy between Ronald Abbott and the
district court defective. Without this crucial information, the
district judge could not adequately ascertain whether Ronald
Abbott was pleading guilty of his own volition or because of
undue pressure to save his mother from prison. This error at
the Rule 11 hearing was not harmless, see Rule 11(h), because
whether a plea is voluntary, intelligent and knowing “is the
touchstone for determining whether substantial rights have been
violated in the acceptance of the guilty plea.” Caro, 997 F.2d
at 660. See also Marrero-Rivera, 124 F.3d at 348 (“[T]otal
failure to address any ’core concern’ mandates that a guilty
plea be set aside. Otherwise, we consider whether any
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particular defect in the Rule 11 hearing affected the
defendant’s ’substantial rights.’”); Martinez-Molina, 64 F.3d at
734 (“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.”). Furthermore, in its
response to Abbott’s motion, the government admitted to the
district court that it would suffer no prejudice in the event
that Abbott was permitted to withdraw his plea. See Daniels,
821 F.2d at 79; United States v. Kobrosky, 711 F.2d 449, 455
(1st Cir. 1983). For all these reasons, the district court’s
refusal to allow the defendant to withdraw his plea was an abuse
of discretion.
Lastly, because we are convinced that upon
consideration of the totality of the circumstances surrounding
the Rule 11 hearing, see Cotal-Crespo, 47 F.3d at 3, the
district court would have concluded that Abbott did not plead
guilty free of undue influence, we will not remand for an
evidentiary hearing on voluntariness but rather will direct the
district court on remand to allow Abbott to withdraw his guilty
plea.
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Denial of Motion to Withdraw Guilty Plea is reversed
and remanded for further proceedings not inconsistent with this
opinion. Rulings on other motions are vacated and said motions
are remanded for further consideration should they be renewed.
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