United States v. Padilla-Galarza

United States Court of Appeals
For the First Circuit

No. 02-1205

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ PADILLA-GALARZA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Boudin, Chief Judge,
Howard, Circuit Judge,
and DiClerico,* District Judge.

Juan Ortiz-Lebrón, by appointment of the court, for appellant.
Marcos E. López, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant
United States Attorney, Chief, Criminal Division, were on brief for
appellee.

December 12, 2003

*
Of the District of New Hampshire, sitting by designation.
 BOUDIN, Chief Judge. Jose Padilla-Galarza pled guilty in

the district court in Puerto Rico to a drug trafficking crime

pursuant to a plea agreement. After the plea but before sentence,

Padilla sought unsuccessfully to withdraw his plea. On this

appeal, he challenges the decision rejecting his motion to

withdraw; he also contests the lawfulness of a sentencing condition

imposed by the district court.

Padilla, a former police officer, was indicted in 1999

for conspiring to possess cocaine with intent to distribute (count

I) and for aiding and abetting the other members of the conspiracy

to possess cocaine with intent to distribute (count II). 21 U.S.C.

§ 841(a)(1) (2000); 18 U.S.C. § 2 (2000). The indictment made

clear that the government proposed to attribute to him in excess of

5 kilograms of cocaine, which would trigger a statutory 10-year

minimum sentence. 21 U.S.C. § 841(b)(1)(A) (2000). A further

count (count III) sought criminal forfeiture of property acquired

through drug proceeds, specifically naming an apartment that

Padilla had purchased in Isla Verde in San Juan. 21 U.S.C. §

853(a)(1)-(2) (2000).

The government's version of the facts, which Padilla

later adopted, are that during the summer of 1995, Padilla was part

of a drug conspiracy involving the shipment of cocaine to the New

York area, that he assisted others in preparing a shipment in

Puerto Rico, that he participated in the theft of a part of the

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shipment, that he himself received several kilos which he then

distributed, and that a portion of the proceeds were used to buy an

apartment in Isla Verde.

On September 11, 2000, about a year after his indictment

and arrest, Padilla–-then represented by counsel Marlene Aponte–-

entered into a detailed plea agreement with the government. By the

agreement, Padilla admitted to the facts just described and agreed

to plead to the second and third counts of the complaint. The

government agreed to drop the first count and to stipulate with

Padilla that he would be held accountable for between 3.5 and 5

kilograms; and the parties further agreed to specific guideline

calculations and to a sentence of 60-months' imprisonment which

fell within the calculated guideline range.

The agreement was designated as one under Federal Rule of

Criminal Procedure 11(e)(1)(c),1 so that the judge if he accepted

the agreement was acquiescing in the sentence. Conversely, if the

judge chose not to sentence in accordance with the stipulated

sentence, Padilla had the right to withdraw the plea. On the same

day, the court conducted a plea hearing, at which Padilla was

informed of the charges, agreed to the facts alleged by the

government, was apprised again of the 60-month sentence

1
The Federal Rules of Criminal Procedure were amended in 2002,
and Rule 11(e) became, with minor changes not relevant to this
appeal, Rule 11(c).

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contemplated by the agreement, and listened to the recitation of

rights waived by forgoing a trial.

There were a few wrinkles. Padilla, although he had

signed the agreement conceding the government's version of the

facts and pled guilty to counts II and III, said no more about them

at the hearing than he agreed that the government could "probably"

prove the facts. On one or two occasions, Aponte answered

questions arguably addressed by the court to Padilla himself. Most

important to this appeal, some confusion attended the discussion of

two topics-–the possibility of Padilla serving some of his sentence

under the so-called boot camp regime and the forfeiture of the

apartment–-to which we will return.

Padilla was returned to prison to await sentencing, and

Aponte visited him there on November 21, 2000. According to her

motion to withdraw filed the following day, Padilla behaved in a

distraught manner, said that at least one of the witnesses against

him had lied, threatened and insulted Aponte, and insisted that he

wanted to go to trial. At about the same time, Padilla filed a pro

se motion to withdraw his guilty plea. In December 2000, the

district court appointed new counsel and referred the motion to

withdraw the plea to a magistrate judge who held a hearing in May

2001 at which Padilla was the only witness.

Padilla claimed at the hearing that he had only cursorily

reviewed the agreement and been told by Aponte that he should trust

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her, that she had written replies for him to make to the court, and

that she had misled him about the boot camp program and about the

forfeiture in respects described below. He also said that,

contrary to his statements to the court at the plea hearing, he had

been depressed at the time of the hearing, had not been taking

anti-depressants that had been prescribed for him, and was upset by

his impending divorce. He said that an "overwhelming amount of

exculpatory" evidence–-never described in detail-–had been kept

from him by Aponte.

The magistrate judge, while saying that the motion was

not frivolous, nevertheless recommended that the motion be denied.

The report said that the plea had been voluntary and not coerced

and that Padilla (who had extensive experience as a policeman) had

understood the charges and knowingly and intelligently acquiesced

in the bargain. The magistrate judge said that the boot camp issue

was peripheral and within the ultimate control of the Bureau of

Prisons. The report also discussed briefly, and without

endorsement, Padilla's basis for his present claim of innocence.

Padilla filed objections to the report.

Thereafter, the district court denied the motion to

withdraw the plea and sentenced Padilla to the 60-month term of

imprisonment specified in the original agreement. As to boot camp,

the judge recommended that Padilla be admitted to the program when

he had served enough of his sentence to become eligible. The court

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also imposed a 48-month term of supervised release following

imprisonment, adding as a condition that:

The defendant shall submit his person,
residence, office or vehicle to a search,
conducted by a United States Probation Officer
at a reasonable time and in a reasonable
manner, based upon reasonable suspicion of
contraband or evidence of a violation of a
condition of release; failure to submit to a
search may be grounds for revocation; the
defendant shall warn any other residents that
the premises may be subject to searches
pursuant to this condition.

This appeal followed.

The major issue is the denial of the motion for

withdrawal of the guilty plea. The district court may allow

withdrawal for "a fair and just reason," Fed. R. Crim. P.

11(d)(2)(B),2 but the case law suggests that among the relevant

factors are whether the plea was voluntary, intelligent, knowing

and complied with Rule 11; the force of the reasons offered by the

defendant; whether there is a serious claim of actual innocence;

the timing of the motion; and any countervailing prejudice to the

government if the defendant is allowed to withdraw his plea.

United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997).

2
At the time it was filed, Padilla's motion was governed by
Federal Rule of Criminal Procedure 32(e). As part of the 2002
amendments, see note 1, supra, that section was relocated as Rule
11(e), but without any substantive change pertinent to this case.

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The customary standards of review apply but a good deal of

discretion is accorded to the district court. Id. at 348.3

We begin with the questions whether Padilla pled guilty

intelligently, knowingly and voluntarily and whether the court

adequately observed the formalities imposed by Rule 11, which are

intended to assure that the defendant understands the charge and

the consequences of the plea. United States v. Cotal-Crespo, 47

F.3d 1, 4 (1st Cir. 1995), cert. denied 516 U.S. 827 (1995).

Padilla's current claim that he did not carefully review the

written document and that his counsel coached him as to the

responses is not by itself enough to show that the plea was

uninformed. Padilla assured the court at the time of the plea that

he had reviewed the agreement and the government's appended version

of the facts and discussed it with counsel.

Ordinarily, a defendant is stuck with the representations

that he himself makes in open court at the time of the plea. See

United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984). They are

more likely to be reliable than later versions prompted by second

thoughts, and guilty pleas--often in the defendant's interest–-

3
Abstract questions of law are reviewed de novo, findings of
raw fact are tested for clear error, and law application and
balancing judgments are usually reviewed for reasonableness, e.g.,
Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002); the
degree of deference may vary, Sierra Fria Corp. v. Donald J. Evans,
P.C., 127 F.3d 175, 181 (1st Cir. 1997), and there are a few flat
exceptions to deference. Ornelas v. United States, 517 U.S. 690,
698-99 (1996).

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could hardly be managed any other way. Further, the main terms of

the agreement were spelled out by the judge and prosecutor in open

court, and the government's version of the facts was read aloud.

The Rule 11 colloquy was not perfect-–few are unless the

judge works mechanically from a script-–but the flaws were minor

and do not undermine the rule's core objectives. See Cotal-Crespo

47 F.3d at 4-5. True, the court did not spell out the abstract

elements of the offense, compare Fed. R. Crim. P. 11(b)(1)(G), but

neither is drug trafficking an obscure crime to a policeman. See

Cotal-Crespo, 47 F.3d at 5-6 ("complexity of the charges" and

"capacity of the defendant" relevant). And while counsel should

not have answered once or twice for her client, Padilla's own

answers were adequate.

Some trial judges might have pursued the term "probably"

in Padilla's concession of what the government could prove, but he

had signed an unqualified admission of the crime and pled to it in

open court. If a defendant believes he is guilty, he may plead

guilty because he thinks the government can "probably" prove his

guilt. The Alford issue–-that of a defendant who wants to plead

guilty while denying that he actually committed the crime-–involves

quite different concerns. See North Carolina v. Alford, 400 U.S.

25, 37-38 (1970).

Even now, Padilla's brief offers no straightforward and

plausible claim of actual innocence, cf. United States v. Ramos,

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810 F.2d 308, 313 (1st Cir. 1987), and Padilla's suggestions in his

withdrawal motion of powerful exculpatory evidence have not been

developed on this appeal. In this court, when Padilla sought yet

another counsel after the briefing, we told him he could submit a

pro se supplemental brief. None has been forthcoming and, while he

has complained of lack of access to his papers, he should by now

have been able to address any evidence pointing to his innocence.

There remains the possibility that Padilla was suffering

from some serious emotional or mental impairment at the time of the

plea. It appears that he misled the district judge in saying that

he had never had any treatment for such a condition, and Aponte

said based on his behavior at the prison that at that time she

deemed him irrational. For obvious reasons, this is one of the

subjects where the defendant's own assurances in open court at the

time of the plea may be given less weight if later evidence to the

contrary emerges.

But at the plea hearing Aponte said that she had no

concern about Padilla's condition and the magistrate judge, who

watched Padilla testify not long afterward, found him articulate

and in command of himself. Padilla's new counsel at the hearing

was free to call Aponte, or a psychiatrist, or both, but did not do

so. The burden is upon Padilla, as the one attacking the plea, to

show the circumstances justifying relief from the plea, United

States v. De Alba Pagan, 33 F.3d 125, 127 (1st Cir. 1994), and he

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has done no more on the issue of capacity than raise limited

doubts.

Padilla's most concrete suggestions that the plea was not

an intelligent one concern the issues of boot camp and forfeiture.

To these we now turn, adding the detail earlier omitted. As to

both issues, the record confirms that there was some confusion at

the time of the plea and both issues have been of continuing

concern to Padilla. We conclude, however, that in each case the

confusion did not prejudice Padilla's legitimate expectations. See

Cotal-Crespo, 47 F.3d at 5.

As to the boot camp issue, the plea agreement provided

that the government "will not oppose [Padilla's] request that he

participate[] in the shock incarceration program (commonly known as

the "boot camp") and will leave the sentence to the sound

discretion of the Court." The boot camp program, which combines

strict discipline and job training, is authorized by statute, 18

U.S.C. § 4046 (2000), and where the six month in-prison component

is successfully completed, can result in a further six months'

reduction in sentence. 28 C.F.R. § 524.32(d)(3) (2003). The

Bureau of Prisons decides who may participate but a recommendation

by the judge is given weight. U.S.S.G. § 5F1.7, p.s., & cmt.

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(1998); Federal Bureau of Prisons, U.S. Department of Justice,

Program Statement No. 5390.08 at 6 (Nov. 4, 1999).4

At the plea hearing, the court quoted the boot camp

provision and asked whether "you" will leave this matter to the

discretion of the court? Padilla's counsel, perhaps

misunderstanding who "you" referred to, said "we understand" and no

more was said about the subject at the plea. Thereafter, Padilla

apparently became persuaded that he was never eligible for the

program at all and urged this as a reason for permitting the

withdrawal of his plea.

On appeal, Padilla argues that he had a disciplinary mark

against him at the facility where he was being held, that this was

incurred prior to the plea agreement, and that Aponte should have

known about it and known also that this would disqualify Padilla

from the boot camp program. A mistaken belief by Padilla that he

could be a candidate for the boot camp program, if indirectly

fostered by the plea agreement and the trial judge, might be

relevant–-though not necessarily decisive–-in weighing his request

to withdraw the plea. But no evidence is before us that a

disciplinary mark against Padilla at the prison where he was

4
The program is available for several categories of
defendants including those serving sentences between 30 and 60
months who are within 24 months of their projected release date.
28 C.F.R. § 524.31(a)(1)(ii) (2003). Thus, Padilla if sentenced
under the agreement would be a candidate, although no more than
that, for the program.

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temporarily being held would disqualify him from later

participation in the boot camp program.

By contrast, there was confusion about the forfeiture

issue. The government's version of the facts in the plea agreement

said that Padilla used a portion of the proceeds from the drugs he

and others stole from the cocaine shipment "to purchase the La

Mancha apartment in Isla Verde." Although Padilla had signed the

plea agreement incorporating this admission, at the plea hearing

Aponte herself raised the subject when the judge asked whether

Padilla was content with the agreement:

We have explained to our client and he
has expressed one small--for purposes of
clarity of the proceedings and for his behalf-
-I will request permission from the Court to
address it on the record--my client expressed
the doubt since he had forfeiture found of an
apartment that's not in his name, that is in a
third person's--third party's name, and in
which he purchased with a power of attorney on
behalf of his brother, I explained to him that
by pleading guilty to the forfeiture count,
since he has always stated that the apartment
is not his, that actually he would be
relinquishing the right to contest that
forfeiture since he does not have any interest
in the apartment.

He, nevertheless, would have no
standing to contest it anyway. He asserts
it's not his. So the only net effect that
this plea agreement would have is that he
agrees under the terms of the plea agreement
not to contest the criminal forfeiture in this
case in which he appears to have in that
count, and that doesn't bind--the Government
has to go against the other parties.

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 The judge then endorsed the view that standing to contest

the forfeiture lay with the party claiming ownership and asked, "Do

you have any doubts as to that now?" Aponte, who may have thought

this addressed to her, said "no" and Padilla said nothing. Later

in the plea hearing Padilla agreed that he was pleading guilty to

counts II and III, and in a brief colloquy Padilla seemed to concur

with the judge's statement that he was admitting that he had

obtained the apartment with drug money.

Padilla's argument on appeal concerning the forfeiture is

not straightforward. The main suggestion is that Padilla never

admitted purchasing the apartment with drug money but was dissuaded

from saying so in court by the earlier colloquy between counsel and

the judge concerning standing. But Padilla did admit purchasing

the apartment with drug money three times: once by signing the plea

agreement, once by pleading guilty to count III, and once in

response to the judge's inquiry after he said the government could

"probably" prove those facts.

Padilla was surely confused about something: Aponte's

comments in court did not come out of thin air, and her later

confrontation with Padilla at the prison seems to have been

prompted in part by Padilla's belief that his plea would facilitate

the forfeiture. According to the government's charge, it appears

that Padilla had purchased the apartment in the name of his brother

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and hoped to resist its forfeiture--on what basis is unclear even

now.

In his brief on appeal, Padilla's counsel suggests that

his client has maintained "[t]hroughout" that "he did not own the

La Mancha apartment." But this is not a denial that he bought it

in his brother's name with drug money-–apparently the government's

position–-so there is no necessary conflict between this contention

and Padilla's plea and admissions at the plea hearing already

described. Even now, there is nothing to suggest that Padilla has

any basis for denying the government's version.

We add that the district judge was correct insofar as he

led Padilla to believe that the forfeiture was primarily a matter

between the government and the current named owner of the

apartment. That owner is free to dispute that the apartment was

purchased with drug money or to offer any version of events that

could militate against forfeiture of that owner's interest. 21

U.S.C. § 853(n) (2000). The only one who has effectively given

away any defense against forfeiture is Padilla who, according to

his present brief, does not claim to own the apartment.

Padilla was represented at the plea hearing by one

counsel and in the withdrawal request by another. His present

appellate counsel suggests that both of these lawyers provided

inadequate representation to Padilla in a variety of respects.

Such claims are rarely considered on direct appeal because almost

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always they require factual development available primarily through

post-conviction remedies, see United States v. Mala, 7 F.3d 1058,

1063 (1st Cir. 1993), cert. denied 511 U.S. 1086 (1994);

importantly, it is very rare that one can condemn counsel as

incompetent without knowing why counsel made the choice under

attack. See Marrero-Rivera, 124 F.3d at 353.

There are occasional exceptions where the facts are fully

developed on direct appeal, see, e.g., United States v. Austin, 948

F.2d 783, 785 (1st Cir. 1991), or the choice one that no reasoning

could support, see U.S. v. McKenna, 327 F.3d 830, 845 (9th Cir.

2003), cert. denied 124 S. Ct. 359 (2003), but nothing like that is

remotely present in this case. The government apparently had co-

conspirator witnesses available to testify against Padilla so

Aponte may well have secured for Padilla a sentence half or less of

what he would otherwise likely have suffered. He can pursue his

competence claims in the conventional way.

The last issue in the case relates solely to the

sentence. Padilla claims that one of the conditions of his

supervised release is vague, arbitrary, and unconstitutional.

Because Padilla did not object to this special condition at

sentencing, our review is limited to a search for "plain error."

United States v. Phaneuf, 91 F.3d 255, 262 (1st Cir. 1996).

The condition in question is described in the judgment

against Padilla as follows:

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 The defendant shall submit his person,
residence, office or vehicle to a search,
conducted by a United States Probation Officer
at a reasonable time and in a reasonable
manner, based upon reasonable suspicion of
contraband or evidence of a violation of a
condition of release; failure to submit to a
search may be grounds for revocation; the
defendant shall warn any other residents that
the premises may be subject to searches
pursuant to this condition. (emphasis added).

At Padilla's sentencing hearing, the district court used slightly

different language: "The Defendant shall warn any other residents

at a premises [sic] that they may be subjected to a search pursuant

to this condition." On appeal, Padilla argues that the condition

implies that probation officers will be allowed to search the

person of anybody they find on the "premises" described and that

Padilla is obligated to inform guests and visitors of this

possibility.

We need not concern ourselves with the enduring question

whether the spoken or written judgment has priority, see, e.g.,

U.S. v. Sines, 303 F.3d 793, 799-800 (7th Cir. 2002), because it is

clear to us in context that Padilla's premises, not the people

themselves other than Padilla, are the subject of the possible

search and required warning. Since Padilla's constitutional

objection is premised on the right of visitors not to be searched

pursuant to the condition, this clarification of the judgment

resolves the issue.

Affirmed.

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