United States Court of Appeals
For the First Circuit
No. 02-1538
UNITED STATES OF AMERICA,
Appellee,
v.
IGNACIO VENTURA-CRUEL
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Baldock,* Senior Circuit Judge, and
Howard, Circuit Judge.
G. Richard Strafer, with whom G. Richard Strafer, P.A., was on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney and Sonia I. Torres-Pabón,
Assistant United States Attorney, Chief, Criminal Division, were on
brief, for appellee.
December 22, 2003
*Of the Tenth Circuit, sitting by designation.
HOWARD, Circuit Judge. Defendant-appellant Ignacio
Ventura-Cruel appeals from his convictions for participating in a
cocaine conspiracy. To resolve this appeal, we must consider
whether, in the circumstances of this case, the district court
lacked the authority to reject Ventura-Cruel's guilty plea and
whether admissions that he made in a letter of confession written
pursuant to his plea agreement were properly admitted against him
at trial. On this second issue, we vacate the convictions and
remand for a new trial.
I. Background
On December 30, 1998, a grand jury returned a four-count
indictment against numerous defendants describing an alleged
cocaine smuggling and distribution conspiracy operating out of
Puerto Rico. The indictment charged Ventura-Cruel with two counts,
participating in a conspiracy to possess with the intent to
distribute cocaine, see 21 U.S.C. § 846, and possessing with intent
to distribute cocaine, see 21 U.S.C. § 841(a)(1). The government
included in the indictment a compilation of overt acts which
evidenced the existence of the conspiracy. Concerning Ventura-
Cruel, the indictment alleged that on April 23, 1998, at the behest
of other conspiracy members, he traveled to an airport in St.
Thomas, U.S. Virgin Islands with $4,000 and a "travel ticket" to
deliver to Juan Carlos Pion, one of the leaders of the conspiracy.
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However, "due to operational difficulties," he was unable to make
the delivery.
On the morning of February 7, 2000, the day his trial was
scheduled to begin, Ventura-Cruel reached a plea bargain with the
government. Under the agreement, Ventura-Cruel agreed to plead
guilty to the first count of the indictment. The government in
turn agreed that it would move to dismiss the second count. The
government also agreed that it would provide the court with a
sentencing recommendation of fifty-four months of incarceration if
Ventura-Cruel qualified for a reduction under the safety-valve.
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.1
As an addendum to the agreement, Ventura-Cruel admitted
certain facts demonstrating his involvement in the conspiracy. The
addendum contained the same facts that were alleged in the
indictment. On the same afternoon that Ventura-Cruel accepted the
plea bargain, he appeared before the district court for a change of
plea hearing. At that hearing, the court conducted the colloquy
mandated by Fed. R. Crim. P. 11. The court reviewed the terms of
the plea agreement with Ventura-Cruel. It stressed to him that the
1
The "safety valve" permits a court to sentence a first-time
offender to less than a mandatory minimum sentence if the defendant
demonstrates compliance with several requirements. See United
States v. Matos, 328 F.3d 34, 36 (1st Cir. 2003). The requirement
most relevant to this appeal is that the defendant must provide the
government with all the information he has "concerning the offense
or offenses that were part of the same course of conduct or a
common scheme or plan." Id.
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agreement did not bind the court to impose the sentence recommended
by the government. It then proceeded to describe the rights that
Ventura-Cruel would relinquish by accepting the plea bargain and to
question him to assure that his waiver of these rights was knowing
and voluntary. Following this discussion, the court summarized the
facts in the addendum, and the government described the facts that
it would have proved if there had been a trial. Ventura-Cruel
acknowledged that these facts accurately summarized his involvement
in the conspiracy. At that point, the court ruled that "a basis in
fact for the plea exists, and therefore, a judgment of guilty shall
be entered as to count one." The court then concluded the hearing
by requesting the preparation of a presentence report and by
scheduling a sentencing hearing. The sentencing hearing was
scheduled for June 23, 2000.
A few weeks after the change of plea hearing, beginning
on February 25, 2000, Ventura-Cruel met for several debriefings
with Special Agents Jose Roman and Aramis Quinones of the Drug
Enforcement Agency (the "DEA").2 The purpose of the debriefings
was for Ventura-Cruel to provide the government with the
information that he possessed about the conspiracy so that he could
qualify for the safety-valve reduction.
2
Additional communications between Ventura-Cruel and the DEA
agents took place on March 9, 2000, March 7, 2000, and March 13,
2000.
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At the sentencing hearing, on June 23, 2000, the
government opposed Ventura-Cruel's eligibility for the safety-valve
reduction because, in its estimation, Ventura-Cruel had not been
truthful in the debriefings. Based on the government's
representation, the district court decided that it could not
pronounce sentence until it determined if, in fact, Ventura-Cruel
was eligible for the safety-valve reduction.3
On February 12, 2001, the district court convened an
evidentiary hearing to consider Ventura-Cruel's safety-valve
eligibility. Ventura-Cruel maintained the burden of proving that
he had been completely forthcoming. See United States v. Marquez,
280 F.3d 19, 23 (1st Cir. 2002). To meet this burden, he
introduced the DEA agents' report memorializing the debriefing
conversations. The government responded by introducing the
testimony of Agent Roman. Agent Roman testified that Ventura-Cruel
told him that when he brought the $4,000 to Pion, "he didn't have
any knowledge they [sic] were involved in drug trafficking." Agent
Roman also testified that Ventura-Cruel told him that "he has never
been involved in drug trafficking, what he did [on April 23, 1998]
was a favor for a friend," and that he was unaware that Pion was
involved in drug smuggling until the date of his arrest.
3
The court, not the government, decides if a defendant
qualifies for the safety-valve reduction. See United States v.
White, 119 F.3d 70, 72 (1st Cir. 1997).
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The government also offered the testimony of DEA Agent
Hector Colon, another agent involved in the investigation of the
conspiracy. Agent Colon testified that he had interviewed Pion as
part of his investigation, and that Pion had stated that Ventura-
Cruel was extensively involved in the conspiracy. Pion also stated
that Ventura-Cruel had provided the vessels used for the drug
smuggling. During the examination of Agent Colon, the government
asked whether there was evidence showing that Ventura-Cruel was a
drug smuggler just like Pion. The defense counsel immediately
objected to the question, stating "the evidence is that he is not."
The district court understood the defense counsel's
objection to be an assertion that Ventura-Cruel was not involved in
drug smuggling. Combining this understanding with Agent Roman's
earlier testimony that Ventura-Cruel had claimed not to know that
he was involved in a drug conspiracy, the court determined that
there was no longer a factual basis for accepting Ventura-Cruel's
guilty plea. The court, by its own motion, withdrew "the plea of
guilty entered by [the defendant because it could not] allow him to
retain a plea of guilty when he didn't know that what was going on
were drugs."
After rejecting the plea, the district court reinstated
the indictment against Ventura-Cruel and set a trial date. The
evidence introduced at trial showed that Ventura-Cruel was an
active participant in the drug conspiracy headed by Pion. Ventura-
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Cruel's role was to organize the maritime transport of the drugs
from Colombia to St. Croix, St. Thomas or St. Maarten for storage.
Once the drugs were stored on of one these islands, Ventura-Cruel
coordinated with Pion to transport the drugs to Puerto Rico. The
government relied primarily on testimony from Miguel Couvertier, a
paid informant, and Ruben Gomez, one of Ventura-Cruel's co-
conspirators, who testified pursuant to a cooperation provision in
his plea agreement. In addition to this testimony, the government
called Alma Martinez, Ventura-Cruel's probation officer. Through
this witness, the government introduced a letter which Ventura-
Cruel had written implicating himself in the conspiracy. The jury
convicted Ventura-Cruel on both counts. The district court
subsequently sentenced Ventura-Cruel to life in prison, and he
timely appealed.
II. Discussion
We address two primary issues. First, we consider
whether the district court maintained authority under the Rules of
Criminal Procedure to reject Ventura-Cruel's guilty plea after
having accepted it over a year earlier. Second, we consider
whether the district court erred by admitting at trial the letter
that Ventura-Cruel wrote to his probation officer confessing his
involvement in the conspiracy.
A. Authority to Reject Ventura-Cruel's Guilty Plea
Ventura-Cruel claims that the district court acted
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without authority in rejecting his guilty plea after having
previously accepted it. Specifically, he claims that Fed. R. Crim.
P. 11 did not provide the district court with the power to reject
his plea.4
It is well settled that a defendant does not have an
absolute right to plead guilty. Santobello v. New York, 404 U.S.
257, 262 (1971). The Supreme Court has stressed that the plea
"phase of the process of criminal justice, and the adjudicative
element inherent in accepting a plea of guilty, must be attended by
safeguards to insure the defendant what is reasonably due in the
circumstances." Id. Rule 11 provides a defendant with these
essential safeguards.
Before accepting a guilty plea, the district court must
address the defendant personally to assure that he understands,
inter alia, the charge against him, the possible punishment, that
he has a right to an attorney, that he has the right to plead not
guilty, that he has a right to a jury trial, and that if he pleads
guilty, he waives the right to a trial. Fed. R. Crim. P. 11(c).
In addition, the district court must determine that the defendant's
plea is voluntary and not the result of force, threats, or
promises. Fed. R. Crim. P. 11(d).
4
Ventura-Cruel has argued on appeal only that the district
court did not have the power to reject his plea. He has not argued
that, even if the court had such power, its exercise of that power
was an abuse of discretion.
-8-
Under Rule 11, the district court must also determine
whether there is a factual basis for the defendant's guilty plea.
Fed. R. Crim. P. 11(f). The purpose of this requirement is to
"protect a defendant who is in the position of pleading voluntarily
with an understanding of the nature of the charge but without
realizing that his conduct does not actually fall within the
charge." Advisory Committee Notes to the 1966 Amendment to Fed. R.
Crim P. 11. Rule 11(f) provides that:
Notwithstanding the acceptance of the
plea of guilty, the court should not
enter a judgment upon such a plea without
making such inquiry as shall satisfy it
there is a factual basis for the plea.5
This rule provides the district court with continuing authority.
As the plain language suggests, the "district court's obligations
under Rule 11(f) continue until it has entered judgment." United
States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998). Thus, the rule
"permits the court to retrospectively reject the plea, after
originally accepting it." 24 Moore's Federal Practice, §
611.08[2][b] (3d ed. 2003); see 8 Charles Alan Wright, Federal
Practice & Procedure Criminal, § 174 at 207 (3d ed. 1999) ("If a
plea has been accepted and the court should later decide that it is
not satisfied that there was a factual basis for the plea, it should
5
Rule 11 was amended in December 2002. Former Rule 11(f) has
been recodified as Rule 11(b)(3) and now states, "Before entering
judgment on a guilty plea, the court must determine that there is
a factual basis for the plea." The Advisory Committee Notes to the
2002 Amendment state that this change is only "stylistic."
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vacate the plea and then enter a plea of not guilty on behalf of the
defendant."); see also Smith, 160 F.3d at 121 (noting that if the
court decides that "there was no factual basis for a guilty plea
after accepting it, the court should vacate the plea and enter a
plea of not guilty on behalf of the defendant"). In this regard,
the Advisory Committee Notes to the 1966 Amendment to Rule 11 state
that the "normal consequences of a determination that there is not
a factual basis for the plea would be for the court to set aside the
plea and enter a plea of not guilty."
As the rule makes clear, however, the district court's
authority to reject a plea under Rule 11(f) is finite; it terminates
when the court enters judgment. Rule 32(d)(1) states, "a judgment
of conviction must set forth the plea; the verdict or findings; the
adjudication; and the sentence." (emphasis supplied).6 Thus, in a
criminal matter, "a court must impose sentence before a judgment of
conviction can issue." Mitchell v. United States, 526 U.S. 314, 337
(1999). Accordingly, the factual predicate for the guilty plea must
exist not only at the time that the court initially accepts the
plea, but also when it imposes sentence. See United States v.
Bennett, 291 F.3d 888, 894 (6th Cir. 2002); see also Howard v.
United States, 135 F.3d 506, 509 (7th Cir. 1998) ("any finding of
an adequate factual basis at the initial plea hearing is necessarily
6
As a result of the December 2002 amendments to the Rules of
Criminal Procedure, Rule 32(d)(1) has been recodified as Rule
32(k). Its language remains the same.
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preliminary"), cert. denied, 525 U.S. 832 (1998).
Here, the district court initially accepted Ventura-
Cruel's guilty plea after determining that there was a factual basis
for his plea at the change of plea hearing on February 7, 2000.
However, at the safety-valve hearing on February 12, 2001, the court
heard evidence that subsequent to the change of plea hearing
Ventura-Cruel claimed that he did not know that he was part of a
drug conspiracy at the time that he committed the acts in
furtherance of the conspiracy. Because a defendant must know that
his conduct was part of a drug conspiracy in order to be guilty
under 21 U.S.C. § 846, see United States v. Nelson-Rodriguez, 319
F.3d 12, 27-28 (1st Cir. 2003), cert. denied, -- U.S. --, 123 S.Ct.
2589 (2003), the court concluded that it could not accept Ventura-
Cruel's guilty plea. Since the district court rejected the guilty
plea prior to entering judgment, the court acted within its
authority under Rule 11(f).7
Ventura-Cruel relies on several cases in which this
Circuit and others have held that a district court exceeds its
authority under Rule 11 by rejecting a guilty plea subsequent to
7
We recognize that the district court stated that it was
entering judgment on Ventura-Cruel's plea after initially accepting
it at the change of plea hearing. However, the court could not
enter judgment at that juncture because it had not yet pronounced
sentence. See Fed. R. Crim. P. 32(d)(1). While the district court
misstated that it was entering judgment by accepting the plea,
consistent with Rule 32(d)(1), the docket does not indicate that
the clerk entered judgment at that time. See id. (judgment must be
signed by the judge and entered by the clerk).
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having accepted it. See United States v. Cruz, 709 F.2d 111 (1st
Cir. 1983); accord United States v. Ritsema, 89 F.3d 392 (7th Cir.
1996); United States v. Skidmore, 998 F.2d 372 (6th Cir. 1993);
United States v. Partida-Parra, 859 F.2d 629 (9th Cir. 1988); United
States v. Blackwell, 694 F.2d 1325 (D.C. Cir. 1982). But in each
case, the district court vacated the defendant's guilty plea for a
reason other than that the plea lacked a factual foundation. See
Ritsema, 89 F.3d at 396 (reversing district court's vacatur of plea
because it thought mandated sentence in plea agreement was too
lenient); Skidmore, 998 F.2d at 374-75 (reversing district court's
modification of plea agreement to excuse defendants from asset
forfeiture provision because court deemed provision unfair);
Partida-Parra, 859 F.2d at 631 (reversing district court's vacatur
of plea because plea agreement contained "clerical error"); Cruz,
709 F.2d at 112 (reversing district court's vacatur of plea because
mandated sentence in plea agreement was inconsistent with sentences
received by co-defendants); Blackwell, 694 F.2d at 1336 (reversing
district court's vacatur of plea after defendant ignored
admonishment that if she testified in favor of co-defendant it would
vacate plea). Because none of these cases involved a court
rejecting a plea because it lacked a factual predicate, the court's
authority to reject a plea under Rule 11(f) was not implicated.
The Ninth Circuit explained the scope of the district
court's Rule 11(f) authority in Partida-Parra, 859 F.2d at 631.
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There, the court noted that a district court generally may not
accept a guilty plea and then subsequently reject it. Id. However,
it observed that Rule 11(f) provides an exception to this general
rule: Rule 11(f) "implies that acceptance of a guilty plea does not
foreclose a subsequent rejection of the plea if factual questions
emerge, for instance at sentencing." Id. That is exactly the
circumstance here. During the sentencing process, the district
court heard evidence that convinced it that there was no longer a
factual basis to support Ventura-Cruel's guilty plea. It therefore
rejected the guilty plea and entered a plea of not guilty in accord
with Rule 11(f). See Smith, 160 F.3d at 121.8
8
Ventura-Cruel, relying on Cruz, 709 F.2d at 114, claims that
the district court's rejection of his plea also violated the Double
Jeopardy Clause. See U.S. Const. Amend. V. In light of the
Supreme Court's decision in Ohio v. Johnson, 467 U.S. 493 (1984),
the Double Jeopardy analysis in Cruz is no longer valid. See
United States v. Kurkculer, 918 F.2d 295, 301 n.9 (1st Cir. 1990);
United States v. Santiago Soto, 825 F.2d 616, 620 (1st Cir. 1987);
accord Ritsema, 89 F.3d at 399 n.6; United States v. Foy, 28 F.3d
464, 471 n.13 (5th Cir. 1994). As a fallback, Ventura-Cruel,
citing Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001), contends
that the Double Jeopardy Clause nevertheless applies because the
plea was "unconditionally accepted" and the "defendant was
adjudicated guilty" by the district court. This contention is
based on a faulty predicate. As discussed above, the district
court's initial acceptance of Ventura-Cruel's plea was necessarily
conditional because the court maintained authority under Rule 11(f)
to vacate the plea until it entered judgment. See Howard, 135 F.3d
at 509.
Ventura-Cruel also claims that his trial counsel provided
ineffective assistance because he failed to alert the court that it
acted without authority by rejecting his guilty plea. Our
conclusion that the district court acted within its authority
effectively disposes of this claim. See Acha v. United States, 910
F.2d 28, 32 (1st Cir. 1990) (failure to raise meritless legal
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B. Admission of Ventura-Cruel's Confession
Ventura-Cruel's second claim is that the district court
erred by admitting into evidence, at his subsequent trial, the
letter confessing guilt which he wrote to his probation officer as
part of the presentencing process initiated after the court had
accepted his guilty plea. He claims that the court's decision to
admit the letter violated principles of basic fairness guaranteed
by due process because he tendered this confession under a belief
that he was not protected by the privilege against self-
incrimination.
Ventura-Cruel's plea agreement provided that he could
receive a reduction in his sentence for acceptance of
responsibility, see U.S.S.G. § 3E1.1. To receive such a reduction,
the agreement required Ventura-Cruel to "accept full responsibility
for the offense committed." It also provided that he could receive
an additional reduction under the "safety-valve" provision, see
U.S.S.G. § 5C1.2, if he provided "truthful and complete information
and evidence to the United States" about his crime and related
events. At the change of plea hearing, the district court explained
to Ventura-Cruel these sentencing provisions and that by pleading
guilty he was waiving his privilege against self-incrimination.
Faced with the requirement that he provide incriminating
argument cannot constitute ineffective assistance of counsel);
United States v. Victoria, 876 F.2d 1009, 1012-13 (1st Cir. 1989)
(same).
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information to receive a shorter sentence and a belief that he was
no longer protected against self-incrimination, Ventura-Cruel
authored a letter of confession on May 23, 2000, to his probation
officer.9 The letter stated:
The first thing I want to tell you is that I
accept full responsibility for what I have
done in this case. During the early evening
of April 23, 1998, I delivered some
electronic equipment, a plane ticket, and
$4,000 to a man in the airport in the St.
Thomas, VI. This man was working for Juan
Carlos Pion and was going to travel to St.
Maarten. After this delivery, I received a
call to pick up these items, since the trip
to St. Maarten had been canceled. This
electronic equipment was eventually seized
during arrests that were made in July of
1998 for cocaine trafficking.
I do not blame anyone but myself for my
activity in this case. I was wrong and I
suffer every day for the mistakes that I
have made in this case . . . What I did in
this case goes against everything I believe
in. I promise that I will never violate the
law again. I am very, very sorry for what
I have done. I look forward to the time
when this problem is behind me, but the pain
in my heart for what I have done will never
leave me.
The district court vacated Ventura-Cruel's guilty plea several
months after he wrote this letter.
9
Ventura-Cruel wrote the letter after the probation officer
told defense counsel that a written statement admitting
responsibility would suffice to establish Ventura-Cruel's
eligibility for the acceptance of responsibility reduction. Thus,
Ventura-Cruel offered this confession to comply with the mechanism
established by his plea agreement for receiving a shorter sentence.
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Ventura-Cruel moved to exclude the letter from his
trial, but the district court denied his motion and admitted it
over his objection. The court admitted the letter because it
concluded that the rules of evidence only prohibited the
introduction of statements made by a defendant as part of the plea
negotiation process. See Fed. R. Evid. 410. In the court's view,
the fact that Ventura-Cruel confessed after the plea negotiations
had concluded rendered the letter admissible.
The admission of Ventura-Cruel's confession in these
circumstances was erroneous. In similar circumstances, the Ninth
Circuit reversed a conviction because it deemed that admitting the
defendant's confession was fundamentally unfair. See United
States v. Escamilla, 975 F.2d 568 (9th Cir. 1992). In Escamilla,
the defendant made incriminating statements as required by his
plea agreement. Id. at 570. The plea agreement also required the
defendant to take a polygraph test. Id. When the defendant
failed the polygraph, the government withdrew from the agreement
but used the defendant's incriminating statements against him at
trial. Id. The court held that the trial court had erred by
admitting the confession because "of the fundamental unfairness of
allowing the government to keep the benefit of its bargain while
denying [the defendant] his." Id. at 572. It concluded that the
"only way to return the parties to the status quo ante is to bar
the government from using [the defendant's] confession against him
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at trial." Escamilla, 975 F.2d at 571; see Hawkins v. Hannigan,
185 F.3d 1146, 1156-57 (10th Cir. 1999) (holding that it was
fundamentally unfair and violation of privilege against self-
incrimination to introduce incriminating statements made by
defendant in reliance on subsequently withdrawn plea bargain);
Gunsby v. Wainwright, 596 F.2d 654, 656-658 (5th Cir. 1979)
(holding that statement made pursuant to plea bargain which was
later withdrawn by the government was inadmissible at subsequent
trial because it violated self-incrimination privilege); People v.
Jones, 331 N.W.2d 406, 408-10 (Mich. 1982) (vacating conviction
because trial court improperly admitted statement made by
defendant pursuant to subsequently withdrawn plea bargain); State
v. Nelson, 33 P.3d 419, 422 (Wash. App. Ct. 2001) (holding that
statement made by defendant in reliance on withdrawn plea
agreement was inadmissible at subsequent trial); see also 5
LaFave, Israel, & King, Criminal Procedure § 21.5(f) at 220-21 (2d
ed. 1999) (stating that where accepted plea is later overturned,
incriminating statements made by defendant in reliance on plea
agreement should be excluded from defendant's subsequent trial).10
We agree with the results reached in these cases,
although in our view it is enough that the use of such statements
10
We note that different considerations may come into play if
the defendant withdraws his guilty plea or the defendant breaches
the plea agreement. See 5 LaFave, Israel, & King, supra, at 221;
see also United States v. Stirling, 571 F.2d 708, 732 (2d Cir.
1978).
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is unfair under the circumstances, and we need not reach the
constitutional grounds relied on by some of these cases. Ventura-
Cruel believed, with reason, that the court had approved his plea
and plea bargain. The plea agreement encouraged Ventura-Cruel to
make incriminating statements in order to receive a shorter
sentence. In light of these incentives, Ventura-Cruel offered such
statements. He was then deprived of the benefit of his plea
bargain but the government was permitted to use his statements made
in reliance on the bargain against him at his subsequent trial.
This was error. The parties should have been returned to their
positions before the district court initially accepted Ventura-
Cruel's guilty plea on February 7, 2000. Part of this return to
the status quo ante should have included preventing the
introduction of Ventura-Cruel's confession at trial.11
The government contends that, even if the confession was
improperly admitted, it was only a harmless error because of the
overwhelming evidence against Ventura-Cruel. For an erroneous
evidentiary admission to be harmless, we must conclude that it was
"highly probable" that the result would have been the same if the
11
Ventura-Cruel's plea agreement did not contain a provision
permitting the use of his admissions if the plea was subsequently
overturned or one of the parties withdrew from the agreement. See
United States v. Morsley, 64 F.3d 907, 918 (4th Cir. 1995)
(allowing confession made by defendant to be admitted in subsequent
trial where plea agreement stated that defendant's statements would
be admissible if defendant withdrew from agreement).
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disputed evidence had been excluded.12 See United States v.
Vigneau, 187 F.3d 82, 86 (1st Cir. 1999). The burden of persuasion
rests with the government to demonstrate harmless error. See
United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998).
The government introduced Ventura-Cruel's confession as
part of its case-in-chief through the testimony of his probation
officer. The government then highlighted the confession to the
jury in its closing argument. In referring to the letter, the
government argued:
There is no doubt that this is his signature
. . . a letter . . . that speaks louder than
any evidence in this case, a letter that way
back in the year 2000 was drafted for only one
purpose . . . to get a three level reduction
for acceptance of responsibility . . . I accept
that I did what I did. I accept [that] I am
guilty, I accept that this is what I have done,
I did participate in this case. Just take a
look at the very first sentence. The first
thing I want to tell you is that I accept full
responsibility for what I have done in this
case. I do not blame anyone. No one, ladies
and gentleman, no one . . . I do not blame
anyone but myself for my activity in this case.
What is the case then that he participated in
a conspiracy to possess in excess of 150
kilograms.
12
The harmless error standard for errors that are
constitutional in nature is more stringent. It requires that the
error be deemed harmless beyond a reasonable doubt. See United
States v. Innamorati, 996 F.2d 456, 475 (1st Cir. 1993). The
government has failed to argue which standard applies here.
However, even under the "highly probable" standard (which is more
favorable to the government), the error, as discussed infra, cannot
be deemed harmless. See Vigneau, 187 F.3d at 86.
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"Confessions are by nature highly probative and likely to
be at the center of the jury's attention." United States v. Leon-
Delfis, 203 F.3d 103, 112 (1st Cir. 2000). This is especially so
where the government emphasizes the confession in its closing
argument because these are "the last words spoken to the jury by
the trial attorneys." United States v. Manning, 23 F.3d 570, 575
(1st Cir. 1994). Moreover, the thrust of the government's case, in
addition to the improperly admitted confession, consisted of
testimony from a paid informant and from a co-conspirator
testifying pursuant to a plea agreement, in the hope of receiving
a lighter sentence because of his cooperation. Ventura-Cruel
argues that both of these witnesses were motivated to provide
testimony favorable to the government and therefore their testimony
raises questions of credibility which militate against finding an
erroneous evidentiary admission harmless.
The government contends that a conviction may be
"sufficient" even where the government relies on the testimony of
co-conspirators. This argument misses the point. The question
here is not whether a conviction based on the testimony of co-
conspirators may be sustained as minimally sufficient. The
question instead is whether, after a review of the entire record,
we are convinced that it is "highly probable" that the jury would
have reached the same conclusion without the confession. Vigneau,
187 F.3d at 86; Shea, 159 F.3d at 40. Where the government
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claimed, in its closing argument, that the confession spoke "louder
than any evidence in the case" and the other damaging evidence
consisted of testimony from witnesses who may have had reason to
fabricate or embellish their testimony, see Coppola v. Powell, 878
F.2d 1562, 1571 (1st Cir. 1989), we cannot conclude that the
admission of Ventura-Cruel's confession was a harmless error.13
III. Conclusion
For the reasons stated above, we affirm the district
court's order rejecting Ventura-Cruel's guilty plea but vacate the
convictions and remand for a new trial.
So ordered.
13
Because of our determination that the erroneous evidentiary
ruling entitles Ventura-Cruel to a new trial, we do not reach his
final contention that the district court erroneously declined to
provide a "multiple conspiracy" jury instruction.
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