United States Court of Appeals
For the First Circuit
No. 98-1144
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL GANDIA-MAYSONET,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Alexander Zeno, by appointment of the court, for appellant.
Camille Velez-Rive, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, were on brief for the United States.
September 13, 2000
BOUDIN, Circuit Judge. Daniel Gandia-Maysonet was
convicted upon a plea of guilty to one count of carjacking, 18
U.S.C. § 2119 (1994), and one count of using a firearm in
connection with that crime, 18 U.S.C. § 924(c)(1) (1994). On
this appeal he seeks to set aside his plea. Because no trial
has been held, there is no definitive version of the facts of
the underlying crime. Based on Gandia's version and that of the
government (to which Gandia did not object), the essential
outline of events is as follows.
On March 20, 1995, in Vega Baja, in the Commonwealth
of Puerto Rico, Ivan Pizarro-Torres invited Gandia to take a
drive and then asked him to rob Victor Colon-Ortiz, a lottery
ticket seller. Gandia said he would not do the robbery alone,
so Ivan Pizarro enlisted his cousin, Samuel Pizarro, to join in
the scheme. Ivan Pizarro then drove Gandia and Samuel Pizarro
to a point near Colon’s home and departed with his vehicle,
leaving Gandia and Samuel Pizarro with Ivan's pistol. Gandia
and Samuel Pizarro circled the house, spotted Colon in his
carport, and approached him.
Samuel Pizarro announced that this was a hold-up; Colon
took out a knife and moved toward Samuel, and Samuel then shot
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Colon five times, killing him.1 Colon’s wife was also shot and
suffered serious injury but survived. Samuel Pizarro proceeded
to drive Colon’s car through a closed gate, and Gandia then
joined him. After fleeing with Colon's car, the pair retrieved
money from the trunk of the car and shared it with Ivan Pizarro.
Some months later, Gandia and another individual shot and killed
Samuel Pizarro. Gandia is now serving a 30-year Commonwealth
sentence for that crime.
In December 1996, the government indicted Gandia and
Ivan Pizarro for carjacking and using a firearm in the course of
carjacking, directly and while aiding and abetting each other as
well as others not charged. Samuel Pizarro was no longer
available as a witness, but Ivan Pizarro agreed to testify
against Gandia, and the government disclosed that it had
recovered Gandia's fingerprint from the trunk of Colon’s car.
In light of this evidence, Gandia and the government reached a
plea agreement, which provided for Gandia to plead guilty to
both counts in exchange for an agreed-upon sentence of 30 years
for carjacking and a consecutive 5-year sentence on the firearm
count.
1This version of the shooting was supplied by Gandia himself
at his change-of-plea hearing. The government's version of
events took no position on whether Gandia or Samuel Pizarro shot
Colon and his wife.
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On May 12, 1997, the district court conducted a change-
of-plea hearing and accepted Gandia’s guilty plea under Rule 11
of the Federal Rules of Criminal Procedure. In the colloquy,
Gandia accepted as true the government’s written version of
facts attached to the plea agreement, and he made a short
statement inculpating himself in the robbery. After a
presentence report, the court imposed the agreed-upon sentence
on October 7, 1997. Gandia then filed a notice of appeal.
Thereafter, Gandia’s counsel filed an Anders brief,
pursuant to Anders v. California, 386 U.S. 738, 744 (1967). In
response to this court's direction, Gandia's counsel briefed two
issues for our consideration. One is whether Gandia's guilty
plea was invalid because the scienter element of the carjacking
crime was misstated at several points in the hearing, so that
the plea was not knowing and voluntary. The other is whether
the facts to which Gandia admitted provide a sufficient factual
basis for a plea to the carjacking offense, as required by
Federal Rule of Criminal Procedure 11(f).
Appellate review of guilty pleas reflects a fairly
specialized body of doctrine. Failures to comply with very
specific, yet technical, requirements of Rule 11 are often found
"harmless," Fed. R. Crim. P. 11(h). E.g., United States v.
McDonald, 121 F.3d 7, 11 (1st Cir. 1997), cert. denied, 522 U.S.
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1062 (1998). But, because a guilty plea is a shortcut around
the fact-finding process, reviewing courts have been willing to
intervene when an error in the guilty plea process arguably
affects a "core concern" of Rule 11. United States v.
Hernandez-Wilson, 186 F.3d 1, 5 (1st Cir. 1999). This includes
ensuring that the defendant understands the elements of the
charges that the prosecution would have to prove at trial. See
United States v. Ferguson, 60 F.3d 1, 2 (1st Cir. 1995); United
States v. Cotal-Crespo, 47 F.3d 1, 4-6 (1st Cir.), cert. denied,
516 U.S. 827 (1995).
We think that this core requirement has not been
satisfied here. To sum up at the start, everyone involved--the
prosecutor, the district court and Gandia’s counsel--
misunderstood the scienter element in the offense in a manner
prejudicial to Gandia; and although we think that the facts
proffered at the Rule 11 hearing would have provided an adequate
basis for accepting the plea, the factual basis was not
overwhelming as to the scienter element. In all, we are far
from certain that Gandia would have agreed to plead guilty if he
had fully understood what the government had to prove as to
scienter. Cf. United States v. Abernathy, 83 F.3d 17, 19 (1st
Cir. 1996).
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The original version of the carjacking statute enacted
in 1992 required, as does the current version, that the
defendant take a motor vehicle "from the person or presence of
another by force and violence or by intimidation"; but in
addition, it also required that the defendant have possessed a
firearm. 18 U.S.C. § 2119 & note (1994). In 1994, aiming to
broaden the statute,2 Congress struck the firearm requirement and
substituted a requirement that the defendant act with "the
intent to cause death or serious bodily harm." Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §
60003(a)(14) (internal quotations omitted). Thus, the statute
now provides as follows:
Whoever, with the intent to cause death or
serious bodily harm[,] takes a motor vehicle
that has been transported, shipped, or
received in interstate or foreign commerce
from the person or presence of another by
force and violence or by intimidation, or
attempts to do so, shall
(1) be fined under this title
or imprisoned not more than 15
years, or both,
(2) if serious bodily injury
. . . results, be fined under
2
See 140 Cong. Rec. E858 (daily ed. May 5, 1994) (extension
of remarks by Rep. Franks) ("My legislation is significant
because it includes carjacking murders that do not involve the
use of a firearm."); 139 Cong. Rec. S15301 (daily ed. Nov. 8,
1993) (statement of Sen. Lieberman) ("This amendment will
broaden and strengthen [the carjacking] law . . . .").
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this title or imprisoned not
more than 25 years, or both,
and
(3) if death results, be
fined under this title or
imprisoned for any number of
years up to life, or both, or
sentenced to death.
18 U.S.C. § 2119 (1994) (emphasis added) (footnote omitted).
Gandia committed the Colon robbery six months after the
1994 amendment became effective, and the new indictment
explicitly alleged an intent to cause death or serious bodily
harm. However, at the change-of-plea hearing, the district
judge described count one to Gandia and, separately, told him
what the government would have to prove to convict on count one.
In both instances, the court said that the required intent was
that Gandia "knowingly and unlawfully" have taken the motor
vehicle; nowhere did the court tell Gandia that he would need to
have intended to kill or cause serious bodily harm. Nothing in
the factual scenario described by the government or admitted by
Gandia specifically referred to an intent on Gandia’s part to
cause death or serious bodily harm.
The district court's error may well have been caused
by an earlier mistake by the prosecutor: in both the plea
agreement and the appended government version of the facts, no
reference appears to any intent to cause death or bodily injury.
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Instead, both documents used the "knowingly and unlawfully"
language that reappeared in the judge's colloquy. Thus, the
indictment aside, Gandia was misadvised four times as to the
scienter requirement and told that the only intent required of
him was that he have knowingly and unlawfully taken the car.
The error was less serious than might first appear
because of the way in which the Supreme Court construed the new
scienter requirement last year. See Holloway v. United States,
526 U.S. 1, 3 (1999). Reading the statute in light of the
amendment’s purpose, the Court held that the intent to cause
death or serious bodily harm could be satisfied not only by
"actual" intent but also by "conditional" intent, that is, by a
willingness to cause death or serious bodily harm if necessary
to hijack the car. Id. at 11-12. Thus, if Samuel Pizarro were
on trial and were shown to have fired the pistol immediately
before fleeing in the car, it would be fairly easy to satisfy
the requirement as to him.
Assuming Gandia’s version of events, in which Samuel
Pizarro was the shooter, the case against Gandia is much closer.
Of course, Gandia was involved in the robbery and, under
Commonwealth law, may have been responsible for the death. But
to convict him of carjacking, the government under Holloway
would have to show at least a conditional intent to kill or
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cause serious bodily injury.3 And while Samuel Pizarro showed
his actual intent to do so by shooting two victims, no
equivalent evidence (so far as we know) is available against
Gandia.
This brings us to the question whether the misstatement
of the scienter standard at the Rule 11 colloquy was likely
enough to have influenced the plea so that the plea should now
be set aside. It is settled law that an understanding of the
charges by the defendant is a critical element for a guilty
plea. Bousley v. United States, 523 U.S. 614, 618-19 (1998);
United States v. Miranda-Santiago, 96 F.3d 517, 523 (1st Cir.
1996). Here, the indictment correctly tracked the statute, and
Gandia agreed that his counsel had discussed the indictment with
him; but whatever force this might have in other situations,
see, e.g., United States v. Marrero-Rivera, 124 F.3d 342, 350
(1st Cir. 1997); United States v. Martinez-Martinez, 69 F.3d
1215, 1221-22 (1st Cir. 1995), cert. denied, 517 U.S. 1115
(1996), the government in the plea agreement and the judge in
3
Although Gandia was also charged with aiding and abetting,
the government has assumed throughout that Gandia had to have
the intent required of a principal, and it has made no claim
that something less would do for an aider and abettor. See
generally United States v. Rosario-Diaz, 202 F.3d 54, 62-63 (1st
Cir. 2000).
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the hearing then proceeded affirmatively to misstate the
scienter element.
This repeated misstatement, if accepted by Gandia,
could well have encouraged him to plead guilty. After all, a
defendant who honestly did not think that he had intended to
kill or maim might well bridle if told that he had to admit to
this intent, even with the Holloway gloss. Of course, if the
evidence of the requisite intent were overwhelming--say, there
was direct evidence that Gandia himself had shot the victims--it
would be hard to think that the misstatement made any
difference. But here the evidence of conditional intent is
indirect and far from overwhelming. Thus, the error in the Rule
11 colloquy was not harmless.
Nonetheless, because Gandia did not object or raise the
scienter issue in the district court by a motion to withdraw the
plea, the objection has been forfeited unless the mistake
constitutes "plain error." See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). Admittedly, our
case law is not perfectly uniform on this point, but most of our
Rule 11 cases have invoked the plain error standard;4 it accords
4
Since Olano, we have referred to the plain error standard
in at least eight Rule 11 cases, e.g., United States v.
McKelvey, 203 F.3d 66, 70 (1st Cir. 2000), but, in several other
recent decisions, we have found it sufficient that the error was
harmless and have declined to say what standard governed, e.g.,
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with Rule 52 and its advisory committee notes; and it has been
adopted by most of the circuits that have addressed the issue in
the Rule 11 context. Among the other circuits, the Second,
Fourth, Sixth, Seventh and Eleventh have adopted the plain error
standard in Rule 11 cases, while the harmless error standard has
been adopted by the Ninth Circuit and, in a footnote without
analysis, by the D.C. Circuit. The case law is set forth in an
appendix to this opinion.
The main practical difference between the two standards
is that plain error requires not only an error affecting
substantial rights but also a finding by the reviewing court
that the error has "seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings."
Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S.
1, 15 (1985)) (internal quotation marks omitted); see also
United States v. Carrington, 96 F.3d 1, 5 (1st Cir. 1996), cert.
denied, 520 U.S. 1150 (1997). The "raise or waive" principle,
here as with other kinds of error, serves obvious interests of
fairness and judicial economy. National Ass’n of Soc. Workers
v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995). In sum, the less
demanding test of harmless error is used where an objection is
United States v. Noriega-Milan, 110 F.3d 162, 166 & n.4 (1st
Cir. 1997).
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made in the district court and thus properly preserved for
appeal; but the bar rises--and the stiffer Olano plain-error
test applies--in the absence of an objection. See generally
Fed. R. Crim. P. 52.
One reason why confusion may have arisen in connection
with guilty pleas is Fed. R. Crim. P. 11(h). This provision,
added by amendment to the rule governing guilty pleas, says (in
substance) that harmless errors should be disregarded but says
nothing about plain error. However, Rule 11(h) was added by
amendment for a narrow purpose: to make clear that a Rule 11
error can be harmless, "because some courts have read McCarthy
[v. United States, 394 U.S. 459, 471 (1969) ("[P]rejudice
inheres in a failure to comply with Rule 11 . . . ."),] as
meaning that the general harmless error provisions in Rule 52(a)
cannot be utilized with respect to Rule 11 proceedings." Fed.
R. Crim. P. 11(h) advisory committee's notes.
The "fairness, integrity or reputation" plain-error
standard is a flexible one and depends significantly on the
nature of the error, its context, and the facts of the case.
United States v. Young, 470 U.S. 1, 16 (1984); see Ferguson, 60
F.3d at 2-4. In the taking of a guilty plea under Rule 11, the
critical concerns are that the plea be voluntary and that there
be an admission, colloquy, proffer, or some other basis for
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thinking that the defendant is at least arguably guilty. United
States v. Santiago-Becerril, 130 F.3d 11, 20 (1st Cir. 1997).
Here, as we have seen, the force of Gandia’s plea in evidencing
arguable guilt was substantially undercut by the misstatement of
the scienter standard. Where, in addition, the other evidence
of scienter was thin (although not beyond reasonable inference),
we think that the error was not merely "harmful" but also "plain
under Olano," because it seriously affected the guilty plea
colloquy’s fairness and integrity.
Gandia's remaining claim on this appeal is that, quite
apart from the scienter element, the trial court erred in
finding a factual basis for the plea. Specifically, Gandia says
that no evidence exists that he intended to take Colon’s car or
that he had a conditional intent to kill or cause serious bodily
harm. Admittedly, nothing on either point is as conclusive as
an admission by Gandia or unequivocal conduct by him (such as
personally shooting Colon and taking his car). But in our view
there was enough to permit the district court to accept a guilty
plea even if we assume, as we do, that Gandia's own statement of
guilt contributed nothing on the intent-to-kill-or-injure issue
(because of the misstatement of the scienter element). See
generally Marrero-Rivera, 124 F.3d at 352; United States v.
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Piper, 35 F.3d 611, 614 (1st Cir. 1994), cert. denied, 513 U.S.
1158 (1995).
To begin with the seizure of Colon’s car, it is true
that, under Gandia's version of the facts, Gandia entered it
only after Samuel Pizarro had driven it through the gate. But
Gandia stood back only to let Samuel break the gate; and he
admitted during the colloquy with the district judge that he had
"knowingly" taken the motor vehicle. He now says that seizing
the car was the impulsive act of his partner, but the claim of
impulsiveness is at least debatable since, even under Gandia's
version of the facts, Ivan Pizarro had "left" his cousin and
Gandia at the scene, with no means of swift escape except to
take Colon’s car.
As for the conditional intent to kill or cause serious
bodily harm, the government’s statement of facts, which Gandia
acknowledged to be true, said that, on the day of the robbery,
Gandia and Samuel Pizarro obtained the pistol from Ivan Pizarro.
Whether or not the weapon was given directly to Samuel Pizarro,
it is reasonably inferrable that Gandia at least knew Samuel was
armed with a weapon intended to be available in the robbery.
Possibly Gandia thought that it would only be used to frighten.
Nevertheless, in context, one might infer that Gandia must have
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known that the pistol would be fired, if necessary, as indeed it
was.
On a plea, the question under Rule 11(f) is not whether
a jury would, or even would be likely, to convict: it is
whether there is enough evidence so that the plea has a rational
basis in facts that the defendant concedes or that the
government proffers as supported by credible evidence. See
Marrero-Rivera, 124 F.3d at 351. Often what the judge is told
at the hearing is an abbreviated version of the full range of
government evidence, omitting detail and nuance that would be
offered at trial. We think that Gandia's plea had a rational
basis in the facts and, if he had been advised of the proper
scienter standard, we would uphold it.
There is one last wrinkle. Gandia pled guilty to two
offenses, not one, and the misstatement of the scienter element
pertained directly only to the carjacking count and not to the
separate firearms count. However, quite apart from the package
character of the plea agreement, the firearms count itself
depended on use or carriage of the firearm "during and in
relation to any [federal] crime of violence," 18 U.S.C. §
924(c)(1) (1994), and the only such federal crime of violence
charged against Gandia was carjacking. Thus, without a valid
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plea to the latter offense, an element of the firearm offense is
lacking.
Accordingly, we vacate the judgment of conviction and
sentence and remand for further proceedings, consistent with
this decision.
It is so ordered.
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APPENDIX
Circuits
Endorsing a Supporting Citations
Plain Error
Standard
Second United States v. Hidalgo, -- F.3d --, 2000 WL
Circuit 1051959, at *4 (2d Cir. 2000) ("And because
appellant failed to argue in the district court
that Judge Carter did not comply with Rule
11(c)(3), we review his claim on appeal only for
plain error. See Fed. R. Crim. P. 52(b).").
Fourth United States v. Jackson, 151 F.3d 1031,
Circuit 1998 WL 386109, at *2 (4th Cir. 1998), cert.
denied, 525 U.S. 1148 (1999).
Sixth United States v. Bashara, 27 F.3d 1174, 1178
Circuit (6th Cir. 1994), cert. denied, 513 U.S. 1115
(1995).
Seventh United States v. Cross, 57 F.3d 588, 590
Circuit (7th Cir.), cert. denied, 516 U.S. 955 (1995).
Eleventh United States v. Quinones, 97 F.3d 473, 475
Circuit (11th Cir. 1996).
Circuits
Advocating Supporting Citations
a Harmless
Error Test
Ninth United States v. Odedo, 154 F.3d 937, 939-40
Circuit (9th Cir. 1998).
D.C. United States v. Lyons, 53 F.3d 1321, 1322 n.1
Circuit (D.C. Cir. 1995).
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Other Supporting Citations
Circuits
Third Compare United States v. Cefaratti, No. 99-3455,
Circuit 2000 WL 1141562, at *14 n.3 (3d Cir. Aug. 14,
2000) ("The government maintains that Cefaratti’s
failure to raise this issue before the District
Court necessitates plain error review -- an issue
on which there is some disagreement in the courts.
We need not decide this issue in light of our
disposition." (internal citations omitted)), with
United States v. Knobloch, 131 F.3d 366, 370 (3d
Cir. 1997) (applying the plain error standard
where defendant had not raised below his
allegation of error in the plea colloquy).
Fifth Compare United States v. Angeles-Mascote, 206 F.3d
Circuit 529, 530 (5th Cir. 2000) ("plain error" standard
for sufficiency of plea’s factual basis), and
United States v. Ulloa, 94 F.3d 949, 952 (5th Cir.
1996) ("plain error" standard), cert. denied, 520
U.S. 1157 (1997), with United States v. Glinsey,
209 F.3d 386, 394 n.8 (5th Cir. 2000) ("harmless
error" standard).
Eighth United States v. Young, 927 F.3d 1060, 1061-64
Circuit (8th Cir. 1991) (finding alleged errors harmless
without discussion of the plain error standard).
Tenth United States v. Friesen, 198 F.3d 259, 1999 WL
Circuit 828051, at *7 (10th Cir. 1999) ("Friesen argues
for the first time on appeal that the district
court violated Fed.R.Crim.P. 11 . . . . Whether
we review for plain error or de novo, including
the harmless error provision of Fed.R.Crim.P.
11(h), the argument lacks merit." (internal
citations omitted)).
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