United States v. Mescual-Cruz

United States Court of Appeals
For the First Circuit

No. 02-2668
02-2670
UNITED STATES OF AMERICA,

Appellee,

v.

GERALDO MESCUAL-CRUZ; NELSON MESCUAL-CRUZ,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
Schwarzer,* Senior District Judge.

Laura Maldonado Rodríguez for appellant Geraldo Mescual-Cruz.
Guillermo A. Macari-Grillo for appellant Nelson Mescual-Cruz.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant United States Attorney, Chief, Criminal Division, and
Germán A. Rieckehoff, Assistant United States Attorney, were on
brief, for appellee.

October 15, 2004

*
Of the Northern District of California, sitting by
designation.
 LYNCH, Circuit Judge. This is an appeal from denials of

motions to withdraw guilty pleas which involve the law on package

pleas.

Defendants Geraldo Mescual-Cruz (Geraldo) and Nelson

Mescual-Cruz (Nelson), who are brothers, along with four co-

defendants pled guilty to federal drug conspiracy charges on April

8, 2002. The pleas were part of a package deal, that is, the

government's offer was contingent on all defendants entering plea

agreements. Sometimes these are referred to as "wired" pleas, that

is, two or more pleas are linked. The package deal was reached

late in the afternoon on the first day of trial, after jury

impanelment in the morning, but before witnesses were presented.

Earlier pre-trial plea negotiations had not succeeded in reaching

an agreement.

This Circuit's case law requires particular care be

exercised both by the government and by the court in package guilty

plea situations due to certain risks inherent in package pleas

which could affect the voluntariness of the plea. United States v.

Abbott, 241 F.3d 29, 34 (1st Cir. 2001); United States v. Sanchez-

Barreto, 93 F.3d 17, 23 (1st Cir. 1996); United States v. Martinez-

Molina, 64 F.3d 719, 733 (1st Cir. 1995); United States v. Daniels,

821 F.2d 76, 80 (1st Cir. 1987). The district court, informed by

the government that this was a package deal situation, had

continued the trial at the request of defense counsel to give time

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for negotiations. The court was informed that the negotiations

were successful and took the pleas. The court, at the Rule 11

colloquy, asked some questions individually of each defendant and

some of the group. Satisfied that the pleas were voluntary, the

court accepted the pleas from all defendants.

Over two months later, Geraldo filed two motions to

withdraw his pleas. He asserted other grounds than that the plea

was part of a package deal, but did say he had felt pressured.

Nelson, Geraldo's brother, also filed a motion to withdraw. That

motion also did not rely on the package nature of the deal. Both

motions alleged a different sort of pressure stemming from related

murder charges pending against Nelson and Geraldo in Puerto Rico

court. The Commonwealth charge had not been resolved when the

defendants pled guilty on April 8, 2002, to the federal charges.

The defendants had unsuccessfully argued for postponement of the

federal trial until the Commonwealth murder charges were resolved

(eventually they were acquitted).

The court denied both motions to withdraw after a hearing

in which each defendant declined the opportunity to testify.

Neither defendant argued that the package nature of the plea deal

put them under such pressure that their pleas were not voluntary.

That argument is made for the first time on this appeal from the

denials of the motions to withdraw.

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 Both argue that it was plain error for the district court

to fail to perform a more searching inquiry into whether the

package plea had been entered into voluntarily. They ask this

court to remand the case to allow them to withdraw their guilty

pleas and proceed to trial or, in the alternative, to require the

district court to hold an evidentiary hearing on the voluntariness

of their guilty pleas. Finally, Geraldo argues that the district

court's failure to have the interpreter translate his allocution

statements into English violated the Jones Act, 48 U.S.C. § 864,

and the Court Reporter Act, 28 U.S.C. § 753(b), and effectively

deprived him of his right to allocution.

We find that the district court did not commit plain

error in denying the motions to withdraw, and the Jones and Court

Reporter Acts errors were harmless. We affirm.

I.

Geraldo and Nelson are brothers. At the time of the

plea, they were 32 and 30 respectively. On August 30, 2001, the

grand jury returned an indictment against Geraldo and Nelson and

seven other co-defendants. Count One charged them with conspiracy

to possess with intent to distribute in excess of one kilogram of

heroin, five kilograms of cocaine, five kilograms of cocaine base,

and in excess of fifty pounds of marijuana, in violation of 21

U.S.C. §§ 841(a)(1) and 846. Count Two of the indictment sought

forfeiture under 18 U.S.C. § 982.

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 On September 12, 2001, Geraldo and Nelson were arrested,

pursuant to an arrest warrant issued on August 30, 2001. On

September 25, 2001, Geraldo and Nelson pled not guilty to both

counts of the indictment. The court set a trial date of April 8,

2002, and the jury trial was set to begin for Geraldo and Nelson,

and four other co-defendants, Nelson Delgado-Vazquez, Juan A.

Torres, Yazugui Alvarado-Maldonado, and Angel Muniz-De Jesus.

The morning the trial started, counsel for all of the

defendants approached the prosecutor and asked if the government

would extend a plea offer. The prosecutor had made an earlier plea

offer, but it had expired on April 1, 2002. The government said it

would not simply extend the old offer; it made a new offer which

increased the length of the sentences and made any plea contingent

on it being a package deal.

Apparently the court was told there were negotiations and

did not resume the trial immediately after the lunch break. Later

that afternoon at 5:00 pm, the court noted that it had interrupted

the trial to permit negotiations. One of the defense counsel asked

to delay further because he was still explaining the pleas to his

client. At that point, two defendants, Muniz and Alvarado, had

tendered pleas. The court indicated that it would take those two

pleas and resume trial in the morning as to the other four

defendants.

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 When defense counsel asked for more time, the court asked

why counsel had not considered all this before trial. Counsel for

Torres said they had considered it before that day and that he had

brought the offer to his client several weeks before. Counsel for

Delgado then said, "I think there is a reasonable guarantee that if

we wait for another ten minutes everyone will plea[d]." The

government then put on the record that its earlier plea offer had

expired on April 1 and the new offer to each defendant was

contingent on it being a package deal. This was the first time

that the court was informed of the package nature of the plea.

Counsel for Geraldo and Nelson said nothing.

The court granted the extra time, telling the defendants

that they should know nobody was forcing them and no one could

force them to plead guilty. After that break (the record does not

indicate its duration) the court was presented with guilty pleas

from all defendants. Each of the defendants was present.

The court proceeded to take the defendants' guilty pleas,

informing the defendants that it would have to ask several

questions to determine whether the "plea of guilty is done with

knowledge of consequences, aware of the fact that you are waiving

a number of rights." The court then addressed each defendant

individually in turn, asking questions concerning the defendant's

competency to plead guilty, his satisfaction with his

representation, and whether he had ample opportunity to discuss

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with his attorney the implications of his guilty plea. The court

received affirmative answers from both Nelson and Geraldo.

After being satisfied that each defendant was competent

to plead guilty, the court addressed the defendants as a group. It

asked questions concerning whether they understood the rights

afforded to them under the Constitution, the rights which they were

giving up by pleading guilty. Having discussed those matters, the

court asked whether each still wanted to plead guilty and received

an affirmative response. The court asked each whether he had seen

the indictment, and received affirmative answers.

The court once again addressed the defendants

individually to explain the charges against each, what the

government would have to prove, and the possible sentence that each

might receive. The defendants affirmed that they understood.

The court addressed the group as a whole and asked, "Has

anyone threatened you or forced you in any form or fashion or

induced you to plead guilty in this case?" (Emphasis added). Each

answered no.

Once again, the court addressed each defendant

individually to discuss the specifics of each plea agreement and

the facts to which each defendant was stipulating. The court

confirmed individually that each had done what he was accused of

doing. The court then turned to the defendants as a group and

asked, "Has anybody made any promises to any one of you to induce

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you to plea?" (Emphasis added). All defendants answered no. The

final question asked by the court was "[is there] any reason why

these pleas should not be accepted?" All attorneys answered no.

After ascertaining from the prosecutor that she had the necessary

evidence to proceed to trial, the court accepted the pleas.

On June 28, 2002, over two months after the guilty plea

was accepted, Geraldo filed a pro se request for withdrawal of his

guilty plea. On July 19, 2002, this motion was followed by a

verified motion to withdraw the guilty plea. Nelson filed a

verified motion to withdraw his guilty plea on July 16, 2002. The

government responded in opposition to both on July 31, 2002.

The thrust of Geraldo's motion to withdraw his plea was

that he felt pressured by the prosecution's intent to obtain a life

sentence because Geraldo was tied to three murders in the course of

the conspiracy. The motion implied that the subject of the murders

had come up at the last minute. On March 6, 2002, the government

gave notice that in its case in chief it would try to prove the

involvement of Geraldo (and others) in three murders. However, on

March 19, the government gave notice it would not try to tie him to

two of the murders, but would introduce evidence tying Geraldo to

the murder of Carlos Maldonado Berrios. Geraldo was charged in

Puerto Rico court with that murder. In the plea negotiations

before trial, the government said it would not negotiate a term of

imprisonment below 19 years. The plea offer at the time of trial

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was that the government would recommend 20 years. The motion

referred to "the pressure he was subject to as the exposure was to

a life sentence." The motion never mentioned pressure from the

package plea.

The government's opposition to the motion responded to

Geraldo's argument and said both allegations were untrue. It

pointed out that Geraldo had, on the drug conspiracy charges alone,

always faced a potential life sentence, regardless of the murder.

The prosecution also pointed out that there was no surprise -- it

said that it made clear within three weeks of indictment it would

seek to introduce evidence of the murders. The prosecution pointed

out that the timing of the motion to withdraw was immediately after

Geraldo was acquitted of the murder at trial in the local court and

that the defendant merely wanted a second bite at the apple in

federal court.

Nelson's motion to withdraw and the government's response

to it were similar to Geraldo's. Nelson too argued that the

"pressure . . . was extraordinary as a drug conspiracy case had

turned into a drug related murder case with a very real exposure of

a life sentence." Nelson also made no allegations of pressures

associated with the package nature of the plea.

The court held a hearing on the motions for both

defendants on August 14, 2002. When asked to give the core

argument for withdrawal, Nelson's counsel informed the court,

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 [H]e feels that 20 years for his plea is too much time.
He has told me that he did go for it because he felt at
that time that he could not do anything else because he
was here and he felt that he had no other choice except
to plead guilty.

As to the murder, the counsel stated, "that was one of the issues

throughout this case trying to make a plea because we had evidence

in his case that there could be, you know, evidence as to murders."

As the court correctly pointed out, Nelson's plea did not include

any admissions as to murder. The plea only held him responsible

for the drug charges. In response to whether Nelson was trying to

argue that he was innocent of the drug charges, the counsel

replied, "no, your Honor." The court then summed up Nelson's

argument: "He is simply saying that [he] took too much time, if

you will, by way of a recommendation because of the pressures of an

impending trial." The court continued, "[s]o basically this is it.

It was too much time [to serve] and it was a lot of pressure and

that is too much drugs basically." Nelson presented no evidence,

and he chose not to testify.

Geraldo's counsel made similar arguments. He

characterized Geraldo's objection as, "[b]asically it is too much

time for the amount of drugs that he dealt with. That is basically

his point." Geraldo's plea agreement did not contain any

admissions as to murder, and he also said he did not wish to

testify.

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 The court found that there was no fair and just reason to

allow withdrawal of the guilty pleas. In the plea agreements there

were no adjustments for murder or for weapons possession and the

defendants pled guilty only to the drug charges. The court stated,

"[u]nder these circumstances, I do think that there is nothing on

this record to suggest . . . that these pleas were involuntarily

entered and there is no reason for me to consider anything other

than going ahead with sentencing in due time." In a written order,

the court repeated this assertion and stated, "[w]hen their pleas

were taken, they did it voluntarily and aware of what they were

doing. No suspicion was alerted to the court. Even more, the

court asked them if there was any other reason for them not to

plead, and they answered in the negative."

On November 21, 2002, both Geraldo and Nelson were

sentenced to 235 months in prison and no fine. They were also

sentenced to serve a five year term of supervised release, and the

court imposed a special monetary assessment of $100.

II.

Involuntariness of the Plea

After the district court has accepted the plea and prior

to the defendant's sentencing, the district court should liberally

allow withdrawal of guilty pleas for any "fair and just reason."

Fed. R. Crim. P. 11(d)(2)(B). Once the district court has ruled on

the defendant's motion to withdraw the guilty plea, however, the

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standard of appellate review is for abuse of discretion on

preserved issues. United States v. Daniels, 821 F.2d 76, 78 (1st

Cir. 1987). Still, that discretion may be limited where a core

concern such as voluntariness is raised and preserved. United

States v. Abbott, 241 F.3d 29, 33 (1st Cir. 2001). Here, the

defendants do not get the benefit of an abuse of discretion

standard of review, because they did not raise the issue of the

package nature of the deal before the district court. Accordingly,

the review is for plain error. United States v. Vonn, 535 U.S. 55,

59 (2002).

An unobjected-to error in the Rule 11 colloquy is

reversible error only upon a showing of plain error. Id. at 63.

Since the Supreme Court's decision in 2002 in Vonn, the defendant's

failure to raise the objection in the trial court has two

consequences. First, it is defendant's burden to satisfy the plain

error rule. It is not the government's burden to show any error

was harmless. Second, the reviewing court may consider the entire

record when assessing the effect of any error on substantial

rights. Id. at 74.

To satisfy its burden, the defendant must show four

things: 1) an error occurred, 2) the error was clear or obvious,

3) it affected the defendant's substantial rights, and 4) it

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings. United States v. Olano, 507 U.S. 725, 732-35

-12-
(1993); United States v. Gandia-Maysonet, 227 F.3d 1, 5 (1st Cir.

2000). There is no contention that the court's Rule 11 inquiry was

insufficient save for these being package pleas.

In package plea arrangements, the prosecutor offers a

benefit or detriment to all (the defendant and third parties) in

order to persuade the entire group of defendants to plead guilty.

These types of arrangements are not per se involuntary. Still,

package plea deals raise at least two types of risks. The first is

that a defendant is coerced by co-defendants to plead guilty

involuntarily. One defendant may be coerced into pleading guilty

by a co-defendant who believes he is getting a good deal under the

package deal. United States v. Martinez-Molina, 64 F.3d 719, 732-

33 (1st Cir. 1995). The second is that there may be a family

relationship between two defendants which leads one defendant to

involuntarily sacrifice his own best interests for those of a

family member (or perhaps both family members to involuntarily

sacrifice themselves) in a belief that the package deal will

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benefit the other.1 Abbott, 241 F.3d at 33; Daniels, 821 F.2d at

79.

As to this second risk, there is a distinction to be

drawn. The concern of the law is for voluntariness. "If a

defendant elects to sacrifice himself [to protect someone close to

him] that is his choice, and he cannot reverse it after he is

dissatisfied with his sentence, or with other subsequent

developments." United States v. Buckley, 847 F.2d 991, 1000 n.6

(1st Cir. 1988)(quoting Kent v. United States, 272 F.2d 795, 798

(1st Cir. 1959)).

On the other side of the coin from these risks, package

plea situations present the possibility of manipulation of the

1
Earlier, the Supreme Court in a footnote raised an issue of
whether the "offer during plea bargaining of adverse or lenient
treatment for some person other than the accused" could render an
individual's plea involuntary. See Bordenkircher v. Hayes, 434
U.S. 357, 365 n.8 (1978). This circuit, along with several others,
has since held that such arrangements do not render the plea
involuntary. See United States v. Buckley, 847 F.2d 991, 1000 n.6
(1st Cir. 1988) (rejecting the defendant's argument that an
agreement promising lenient treatment of a pleading defendant's
family member is substantively unfair); United States v. Tursi, 576
F.2d 396, 398 (1st Cir. 1978) (allowing defendant's plea to be tied
to the prosecutor's recommendation of a lighter sentence for the
defendant's son, when defendant was advised of the consequences of
pleading guilty and was counseled that any recommendation made by
the prosecution regarding the son's sentence would in no way bind
the court); see also United States v. Vest, 125 F.3d 676, 678-79
(8th Cir. 1997); United States v. Marquez, 909 F.2d 738, 741-42
(2nd Cir. 1990); United States v. Morrow, 914 F.2d 608, 613-14 (4th
Cir. 1990); Politte v. United States, 852 F.2d 924, 929-30 (7th
Cir. 1988); United States v. Castello, 724 F.2d 813, 814-15 (9th
Cir. 1984); United States v. Diaz, 733 F.2d 371, 374-75 (5th Cir.
1984).

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system: one defendant obtains a benefit for a co-defendant and then

moves to withdraw his own plea, the benefit having been given.

Daniels, 821 F.2d at 79. Benefits accrue to the individual

defendants involved, from both the traditional prosecutorial

bargaining chips and the elimination of the dilemma where one co-

defendant is pressured to plead by the fear that another co-

defendant will plead and then testify against him. In the package

plea situation, defendants can be confident that all co-defendants

are pleading guilty. Here, each defendant received a benefit of

avoiding the risk of a life sentence.

This circuit has crafted a two-part rule in package

guilty plea situations to ensure voluntariness. First, the

prosecution should inform the trial court before the Rule 11

colloquy that the plea is a package deal so that the court is aware

of the situation. Second, the court's ensuing colloquy should show

sensitivity to the issue of voluntariness in light of those

pressures. Martinez-Molina, 64 F.3d at 733. We have not, though,

mandated that extra procedures be followed, only that the court

should assess voluntariness with an eye to the special situation.2

2
The Government has confessed error and is not defending the
district court's ruling. The court of appeals is not obligated to
accept legal propositions "even where the parties are agreed,
merely because there is no adversary dispute or presentation on the
particular issue." Computervision Corp. v. Comm'r of Internal
Revenue, 164 F.3d 73, 75 (1st Cir. 1999); United States v. Tulloch,
380 F.3d 8, 11 n.2 (1st Cir. 2004). When determining whether to
address conceded issues, pertinent considerations include: 1)
whether the issue is recurrent so that decision would give guidance

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Cf. United States v. Holland, 117 F.3d 589, 594 (D.C. Cir.

1997)(recognizing that "wired" pleas can be coercive, but refusing

to mandate a special voluntariness inquiry by the district court

when faced with a wired plea)(citing United States v. Farley, 72

F.3d 158, 163 (D.C. Cir. 1995)).3

The greatest risk comes when the government has not

informed the court that the plea is part of a package deal. Where

we have reversed and vacated such pleas, it has been most often

when the prosecution failed to make the disclosure to the trial

court. Abbott, 241 F.3d at 33-35; Daniels, 821 F.2d at 79-81.

Here there is no doubt that the trial court knew the deal was a

to the district courts, 2) whether it would be unseemly to accept,
even arguendo, a mistaken legal proposition and reason from it to
decide the case, and 3) whether the issues are technical and
complex and not explored carefully in existing decisions so that
adversary briefing would be critical. See Computervision Corp.,
164 F.3d at 75; Tulloch, 380 F.3d at 11 n.2. In applying these
considerations to the case at hand, this court is not obligated to
accept, and we do not accept, the government's confession of error
which is based on the notion that there are mechanical extra steps
which must be taken in order for a package plea Rule 11 colloquy to
result in a voluntary plea.
3
Decisions of other circuits have referred to the special
care or inquiry that must be taken to determine voluntariness when
pleas involve leniency or linkage to a third person. See United
States v. Morrow, 914 F.2d 608, 613-14 (4th Cir. 1990)(noting that
"[s]pecial care must be taken to determine the voluntariness of the
plea in [package plea] circumstances" and finding no fault in the
district court's determination that the package plea was entered
into voluntarily when the defendant answered that no one had
threatened, persuaded, or induced him into pleading guilty, no one
had made any promises of leniency other than those contained in the
plea agreement, and the written plea agreement contained the entire
plea agreement in the case).

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package deal. It was told so by the prosecution in the presence of

defendants and their counsel. We reject the defendants' argument

that they are entitled to reversal because the government did not

formally announce at the Rule 11 colloquy itself again that this

was a package deal situation.

The question of the adequacy of the court's inquiry on

voluntariness is a bit closer. We review that question in light of

the risks inherent in package deals and the plain error standard of

review. We need not answer the question of whether the rather

spartan colloquy would have been adequate if the package plea issue

had been preserved by defendants. The court did not ask a direct

question about voluntariness and did not explore whether the nature

of the package deal impaired the voluntariness of any of the pleas.

A more direct inquiry might have avoided this appeal.

The court did ask the defendants "[h]as anyone threatened

you or forced you in any form or fashion or induced you to plead

guilty in this case" and "[h]as anybody made any promises to any

one of you to induce you to plea?" To both of these questions the

defendants answered no. Additionally, at the end of the colloquy,

the court asked whether there was "any reason why these pleas

should not be accepted?" All counsel for the defendants answered

no.

If there were pressures from co-defendants or from the

fraternal relationship that led to involuntariness, Nelson and

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Geraldo had adequate opportunity to say so. To the contrary, the

defendants' answers to the court's questions indicate that they

pled guilty of their own volition, fully aware of the rights they

were relinquishing and the charges they were accepting. The

defendants' "declarations in open court carry a strong presumption

of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977);

United States v. Marrero-Rivera, 124 F.3d 342, 349 (1st Cir. 1997)

(despite later assertions that defendant was pressured by attorney

to plead guilty, the district court reasonably credited the

defendant's sworn statements that he was pleading freely and that

no one had attempted to coerce him).

In cases where the district court was aware of the

package nature of the plea, we have held the district court's

voluntariness inquiry inadequate in only one case. See Martinez-

Molina, 64 F.3d at 734. Martinez-Molina held that denial of a

motion for withdrawal of a guilty plea was error when the district

court inquired only into whether the prosecutor had placed pressure

on the defendant. Id. The Rule 11 colloquy was insufficient to

ascertain voluntariness because "regardless of whether [the

defendants'] guilty pleas were actually coerced by their co-

defendants, the literal answer to the court's question could still

have been 'yes'." Id.

By contrast, the court's questions here did not limit the

defendants' answers; the questions were broad enough to include the

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traditional types of coercion and the unique pressure from a co-

defendant or family member that might be present in a package deal.

This case is more like United States v. Sanchez-Barreto, 93 F.3d 17

(1st Cir. 1996).4 In Sanchez-Barreto, the defendants contended

that their pleas were involuntary because of their attorneys'

recommendations to accept the plea bargains offered by the

government on the morning of the first day of trial. The court

recognized that "[s]pecial Rule 11 requirements have been designed

to minimize the significant risk that 'involuntary' guilty pleas

may be tendered in response to package plea bargain offers from the

government." Id. at 23. This court found that the Rule 11

colloquy was adequate to satisfy the "threshold voluntariness

determinations for Rule 11(d) purposes," when each defendant

repeatedly informed the district court that his guilty plea "had

not been coerced by anyone . . . ." Id. (emphasis in the

original). The court distinguished this acceptable colloquy from

the unacceptable colloquy of Martinez-Molina, where the trial court

restricted its inquiry to prosecutorial coercion. Id.

Even if the Rule 11 inquiry could have been more probing,

there is nothing in the record to suggest that either plea was

involuntary due to the package nature of the deal. There is no

4
It is not entirely clear from the opinion whether this plea
bargain was in fact a package deal or the defendants and their
counsel believed it was a package deal. In the opinion, the court
treated it as such for purposes of the Rule 11 inquiry.

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indication from the Rule 11 colloquy that the defendants felt

pressure from co-defendants or family members. See Daniels, 821

F.2d at 79 (holding the Rule 11 colloquy lacking when the judge was

unaware of the package deal and the defendant answered questions

during the colloquy in such a manner as to indicate that he was

feeling some family pressure to plead guilty).

It is true that in their later motions to withdraw,

Nelson and Geraldo complained of pressure, but neither complained

of pressure from the fact that the pleas were packaged. Had the

issue been raised, the district court could have explored it at the

hearing. Further, both defendants had the opportunity to take the

stand to explain their concerns, which they declined to do.

Even so, one might argue that a remand to the district

court to hold a hearing would be appropriate to eliminate any

concern. We decline that option. Even on appeal, defendants have

not argued they have suffered harm or that involuntariness occurred

as a result of this being a package deal. If brotherhood led to

involuntary self-sacrifice, Nelson and Geraldo have never said so.

If pressure from co-defendants coerced them into a deal, Nelson and

Geraldo have never said so.

Instead they even now offer only prejudice arguments

unrelated to the risks of a package plea. Geraldo argues he was

pressured because he had only 10 minutes to decide whether to

accept the plea. There are two responses. First, the "ten minute"

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representation is not true. Plea negotiations took place before

trial and for hours on the day of trial. Second, even if it were

true that only ten minutes were afforded, the lack of time could be

a source of pressure regardless of whether the plea offered was a

package deal, and "the strategic decision to plead guilty [is] not

[necessarily] rendered involuntary by the anxieties and time

pressures confronting [the defendant]." See United States v.

Marrero-Rivera, 124 F.3d 342, 350 (1st Cir. 1997).

When asked what Geraldo relied on to demonstrate

involuntariness, he replied simply that the plea was a package

deal, as though such package plea arrangements inherently cannot be

voluntary. That is not the law. Additionally, we will not infer

lack of voluntariness, as the defendant encourages us to do, from

the mere fact that one co-defendant was his brother or the mere

fact that many of his co-defendants received lighter sentences.

Nelson articulates a different concern, one which again

is unrelated to the package nature of the plea. His concern stems

from the pressure he was under because his Puerto Rico murder trial

did not take place before his federal trial and the consequent need

to plead on April 8 to the federal charge. Even this pressure does

not render his plea involuntary. As the government points out, he

was not charged with the murder in federal court. It is true the

murder might be relevant conduct for federal sentencing purposes.

Even were Nelson acquitted of the murder, as he was, the murder

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still could have been considered by the sentencing judge. United

States v. Watts, 519 U.S. 148, 156 (1997); United States v.

Lombard, 102 F.3d 1, 5 (1st Cir. 1996); United States v. Lombard,

72 F.3d 170, 175-76 (1st Cir. 1995). Moreover, his federal

sentencing exposure was similar whether or not he was found guilty

of the murder in Puerto Rico court. Even if there had been no

murder, based solely on the amount of drugs involved in the

conspiracy and attributable to him, Nelson faced a possible life

sentence.

III.

Jones Act and Court Reporter Act

Geraldo argues that the court violated the Jones Act, 48

U.S.C. § 864, and the Court Reporter Act, 28 U.S.C. § 753(b), in

failing to have the court interpreter translate his statements and

then failing to have the translation recorded during the sentencing

hearing. He contends that this failure deprived him of his right

to allocution. We agree that there was a violation of the two

acts, but hold it was harmless. He received the lowest sentence

available and, even were he eloquent in his translated allocution,

he could not have obtained a lower sentence.

In the context of allocution statements, we have held

that the sentencing proceedings were "irremediably flawed and must

be held afresh" when the defendant was denied the right of

allocution or its functional equivalent under Fed. R. Crim. P.

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32(i)(4)(A)(ii). United States v. De Alba Pagan, 33 F.3d 125, 130

(1st Cir. 1994). To achieve functional equivalency, "the court,

the prosecutor, and the defendant must at the very least interact

in a manner that shows clearly and convincingly that the defendant

knew he had a right to speak on any subject of his choosing prior

to the imposition of sentence." Id. at 129. Geraldo argues that

because the prosecutor did not understand the allocution in Spanish

and the court did not order the translation, it was impossible for

the prosecutor to interact in the way envisioned in De Alba Pagan.

This part of the case involves two statutes: The Jones

Act, 48 U.S.C. § 864, and the Court Reporter Act, 28 U.S.C. §

753(b). The Jones Act provides that "[a]ll proceedings in the

United States District Court for the District of Puerto Rico shall

be conducted in the English language," and the Court Reporter Act

mandates that certain proceedings "be recorded verbatim [including]

all proceedings in criminal cases [held] in open court."

At Geraldo's sentencing, neither of these things

happened. After the prosecutor offered his recommended sentence,

the court asked Geraldo whether he had anything he wished to say.

Geraldo read a written statement in Spanish. This statement was

not translated by the court interpreter, and it was not transcribed

into the record. However, the court was fluent in Spanish, and the

handwritten statement itself was included in the record.

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 Violations of these acts do not require automatic

reversal. "[N]othing prescribes automatic reversal of a

defendant's convictions for non-compliance with [the Court Reporter

Act]. Rather, to obtain reversal and a new trial, the defendant

must demonstrate specific prejudice to his ability to perfect an

appeal, beyond mere non-compliance with the Court Reporter Act."

United States v. Smith, 292 F.3d 90, 97 (1st Cir. 2002)(applying

harmless error review to a Court Reporter Act violation)(citations

and quotations omitted). As to the Jones Act, we have reviewed

these violations for plain error when they were not raised until

appeal. United States v. Morales-Madera, 352 F.3d 1, 6-7 (1st Cir.

2003).

Even assuming an impairment of Geraldo's right to

allocution, any such impairment was harmless. De Alba Pagan, 33

F.3d at 130 n.5. (suggesting application of the harmless error rule

when "a sentence is 'already as short as it could possibly be under

the Guidelines'")(quoting United States v. Carper, 24 F.3d 1157,

1162 (9th Cir. 1994)).

Nonetheless, we once again note the importance of

compliance with the Jones Act. See United States v. Morales-

Madera, 352 F.3d 1, 7 (1st Cir. 2003) (stating, "[p]articipants,

including judges, jurors, and counsel, are entitled to understand

the proceedings in English"); United States v. Rivera-Rosario, 300

F.3d 1, 5 (1st Cir. 2002).

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For the reasons stated above, we affirm the judgment.

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