U.S. v. Raineri

• Decision Date: 02 May 1994
• Docket Number: No. 93-2132,93-2132
• Parties: UNITED STATES of America, Appellee, v. Bruce RAINERI, Defendant, Appellant. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 36

42 F.3d 36

UNITED STATES of America, Appellee, v. Bruce RAINERI, Defendant, Appellant.

No. 93-2132.

United States Court of Appeals,First Circuit.

Heard May 2, 1994.

Decided Dec. 9, 1994.

Dorothy F. Silver, by Appointment of the Court, Manchester, NH, for appellant.

Jean B. Weld, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for U.S.

Before SELYA and BOUDIN, Circuit Judges, and CARTER, ^* District Judge.

BOUDIN, Circuit Judge.

On April 6, 1992, Bruce Raineri ("Raineri") was indicted together with five other defendants: Gary Neal, William Kenney, Charles Flynn, Richard Ferguson and Brian Raineri. The lengthy indictment charged various of the defendants with a series of offenses arising out of the planning and execution of a string of armed robberies in New Hampshire during 1991. The three charges against Raineri all related to his alleged participation in a single armed robbery of the home of a grocery chain owner named Fitzpatrick during the summer of 1991, apparently in the hope of obtaining the store proceeds.

In the indictment, count 14 charged Raineri with conspiracy to obstruct interstate commerce by robbery involving actual or threatened force and violence. 18 U.S.C. Sec. 1951. Count 24 charged Raineri with using or carrying firearms during and in relation to the conspiracy. 18 U.S.C. Sec. 924(c)(1). Count 28 charged Raineri with possessing firearms (specifically, a rifle and shotgun) after having previously been convicted for a crime punishable by more than one year's imprisonment. 18 U.S.C. Secs. 922(g), 924(e)(1).

On June 17, 1992, Raineri pled guilty to all three charges based on a plea agreement with the government. The inducement offered in the plea agreement was the government's commitment to move for a departure under U.S.S.G. Sec. 5K1.1 if (in the government's judgment) Raineri provided substantial assistance. In the plea hearing pursuant to Fed.R.Crim.P. 11, Raineri told the court that his plea was voluntary and was based on no inducement other than the plea agreement. The prosecutor provided a proffer of evidence for each of the counts and Raineri stated on the record, without qualification, that the description was correct.

As to penalties, the court asked Raineri if he was aware of the maximum penalties provided for the three offenses, and Raineri replied: "Ten years, 20 years, and five years." The court then said:

Count fourteen is 20 years and a fine of $10,000 or both. Count Twenty-four is five years imprisonment, which must be consecutive to the crime of violence. Count Twenty-eight is ten years and a fine of $10,000 or both. Do you understand that?

Raineri replied: "Yes, I do." There was no reference to supervised release or restitution. Neither defense counsel nor the prosecutor expressed any disagreement with the district court's description of penalties.

On October 2, 1992, Raineri's counsel filed motions to withdraw his guilty plea, to continue his trial (trial for several other defendants who had not pleaded guilty was scheduled for October 5), and to permit counsel to withdraw. As reasons for the requested withdrawal of the guilty plea, Raineri's motion said in conclusory terms that he was not guilty, that he had not understood the charges against him or his exposure under the Sentencing Guidelines, and that he was suffering at the time of his plea from lack of medicine to counteract his drug dependency.

On October 5, 1992, the district court denied Raineri's motion to withdraw his guilty plea but appointed for him new counsel, who also now represents Raineri on this appeal. The district court then proceeded to try three co-defendants, the other two having pleaded guilty. The co-defendants who were tried--Neal, Kenney and Flynn--were subsequently convicted on a number of charges, and this court largely affirmed. United States v. Neal, 36 F.3d 1190 (1994). The convictions included charges relating to the August 3, 1991, armed robbery of the Fitzpatrick home in which Raineri had been implicated.

In March 1993, Raineri's new counsel filed new motions seeking withdrawal of the guilty plea. The reasons now offered were that Raineri had not been mentally competent to plead guilty because he was then suffering from lack of methadone; that the government had failed to disclose at sentencing its additional (alleged) promise that Raineri would be given immediate access to methadone if he pleaded guilty; and that he had not been adequately represented by prior counsel. Faced with these claims, the court scheduled an evidentiary hearing for April 15, 1993.

At the April 15 hearing, Raineri testified; he described his alleged defenses (e.g., that he had not been at the scene of the break-in and had never possessed the rifle and shotgun attributed to him) and said that the intended crime was burglary of an unoccupied home rather than armed robbery of individuals. He also said that he pleaded guilty to get methadone and that he had not known that the five-year sentence under count 24 was mandatory. Finally, Raineri explained that he had delayed from June to October 1992 in seeking to withdraw his plea because of difficulties in reaching his then-counsel. Raineri's former counsel testified at length about his representation, admitting that he had not returned some phone calls from Raineri during the summer of 1992.

On April 20, 1993, Raineri's counsel filed an amended memorandum of law urging another basis for withdrawing the guilty plea. Counsel explained that Raineri's presentence report had been received in March 1993, and it disclosed for the first time that Raineri had three previous convictions for violent felonies or serious drug offenses. Raineri had been advised at the plea hearing that the penalty under count 28 was a maximum of 10 years' imprisonment, $10,000 fine or both; but his triple felony record meant that he was subject to a minimum of 15 years' imprisonment and the maximum fine was $25,000. 18 U.S.C. Secs. 922(g), 924(e)(1). The government responded that in order to "remedy any possible defects," it was moving to dismiss count 28 of the indictment under Fed.R.Crim.P. 48(a).

On April 25, 1993, the district court entered an order granting the motion to dismiss count 28 pursuant to Rule 48(a). The court rejected as untrue Raineri's claim that the government had induced his plea by promising to place him immediately in a methadone treatment program. It found that his original counsel had not provided ineffective assistance. Finally, the court found a lack of good cause to permit a withdrawal of the guilty pleas pursuant to Fed.R.Crim.P. 32(d):

Here, the timing (3 2/3 months after entry of plea); (lack of) force and plausibility of reasons; (unpersuasive) assertion of innocence; the finding of no breach of the plea agreement; and the finding that the defendant's plea on June 17, 1992, can still be regarded as voluntary, intelligent, and otherwise in conformity with Rule 11, Fed.R.Crim.P.; requires the further finding that "no fair and just reason" exists such as to permit the withdrawal of the defendant's pleas. United States v. Tilley, 964 F.2d 66, 72 (1st Cir.1992).

On September 27, 1993, the court held a sentencing hearing. At Raineri's behest, his brother Brian testified. He implicated Bruce in the conspiracy to rob Fitzgerald's home, but said Bruce had not been present at the house. He also said that no one had expected the house to be occupied or a gun to be used, although in fact the house was occupied and co-conspirator Kenney turned out to be carrying a handgun. Finally, Brian testified that the cooperation that he provided in testifying at the October 1992 trial of the co-defendants was also supposed to inure to the benefit of Bruce. The government presented testimony that any departure in favor of Bruce Raineri was to be based on his own cooperation, not that of his brother, and that Bruce Raineri's attempted withdrawal of his guilty plea made him useless to the government as a trial witness against the non-pleading defendants. Other government evidence, largely hearsay but still properly considered at sentencing, indicated that Bruce Raineri had transported his brother and the stolen property after the break-in was completed, and that he and his brother moved a rifle and shotgun from the van to another car.

Raineri himself testified at the sentencing hearing. He admitted helping to plan the break-in and accompanying his brother to a rendezvous point. He denied that a rifle or shotgun had been carried or that he had known about any weapon. He said that at the time of his guilty plea he had been "in a severe state of withdrawal from methadone" and had expected the methadone treatment to recommence "upon the guilty plea." He also said that he knew that the sentence for carrying a firearm under count 24 would be consecutive, but not that it was mandatory.

At the end of the sentencing hearing, the court found, based on the testimony at the co-defendants' trial, that guns had been carried in the van by the Raineri brothers. The court also found that Raineri had obstructed justice by lying to the court and was not entitled to a reduction for acceptance of responsibility. Raineri was then sentenced to 60 months' imprisonment on count 14, 60 months' imprisonment on count 24 to be served consecutively, and five years' supervised release, and he was ordered to make restitution in the amount of $5,988. This appeal followed.

I.

Raineri's first and most powerful claim on appeal is that his original guilty plea was not "knowing or voluntary and otherwise in conformity with Rule 11(c)(1) because he was not properly informed of the consequences of his plea." Rule 11 prescribes numerous steps that must be followed before a defendant is allowed to plead guilty. As to penalties--the issue with which we are immediately concerned--the rule says that before accepting the guilty plea, the court must address the defendant...