U.S. v. Torrellas

• Citation: 455 F.3d 96
• Decision Date: 11 July 2006
• Docket Number: Docket No. 05-0975-CR.
• Parties: UNITED STATES of America, Appellee, v. Scott TORRELLAS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

455 F.3d 96

UNITED STATES of America, Appellee, v. Scott TORRELLAS, Defendant-Appellant.

Docket No. 05-0975-CR.

United States Court of Appeals, Second Circuit.

Argued: February 16, 2006.

Decided: July 11, 2006.

Jason P.W. Halperin, Assistant United States Attorney, New York, NY, (Michael J. Garcia, United States Attorney for the Southern District of New York, John M. Hillebrecht, Assistant United States Attorney, New York, NY, on the brief), for Appellee.

Howard M. Simms, New York, NY, for Defendant-Appellant.

Before KEARSE and SACK, Circuit Judges, and STANCEU, Judge^*.

KEARSE, Circuit Judge.

Defendant Scott Torrellas appeals from a judgment entered in the United States District Court for the Southern District of New York following his plea of guilty before Colleen McMahon, Judge, convicting him of possession of stolen firearms, in violation of 18 U.S.C. §§ 922(j) and 2, and sentencing him principally to 56 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Torrellas contends principally (a) that the district court failed to determine in accordance with Fed.R.Crim.P. 11 that Torrellas, who suffered from a memory impairment at the time of his plea of guilty in June 2004, understood the nature of the charge against him, and (b) that there was an insufficient basis for the court to determine that his plea was knowing and voluntary. Torrellas also contends that the court imposed inconsistent alternative sentences. Although we note that the judgment contains a typographical error in the spelling of Torrellas's surname, and we instruct that that error be corrected, we find no basis for disturbing the substance of the judgment.

I. BACKGROUND

There is no dispute as to the factual background of this case. In the fall of 2001, local law enforcement agents in Dutchess County, New York, were investigating a series of burglaries in the area. On November 2, 2001, Torrellas's wife contacted the Dutchess County Sheriff's Office ("Sheriff's Office") and reported that there were a number of stolen items in the Torrellas residence. Members of the Sheriff's Office promptly searched Torrellas's home and discovered items similar to property that had been reported stolen. Torrellas was arrested.

Following his arrest on November 2, 2001, Torrellas admitted to officers of the Sheriff's Office, in a tape-recorded session, that he had committed many larcenies during a span of several years. These included thefts in September 2001 of a variety of firearms from lockers of members of a nearby gun club at which he had been employed.

In February 2002, Torrellas was indicted on state-law charges of, inter alia, robbery, burglary, and criminal possession of stolen property. He eventually pleaded guilty in May 2004 to one count of robbery in the first degree and was sentenced in July 2004 principally to a 72-month term of imprisonment (the "state sentence").

A. The Federal Indictment and the Competency Proceedings

The present prosecution was commenced in May 2002, when a federal grand jury handed down a one-count indictment charging Torrellas with offenses relating to the firearms taken from the gun club. The indictment alleged that, in violation of 18 U.S.C. §§ 922(j) and 2,

[i]n or about September 2001, in the Southern District of New York, SCOTT TORRELLAS, the defendant, unlawfully, knowingly and willfully received, possessed, concealed, stored, bartered, sold and disposed of stolen firearms and stolen ammunition, . . . knowing and having reasonable cause to believe that the firearms and ammunition were stolen, to wit, SCOTT TORRELLAS, while working as an employee at the Pawling Mountain Club in Pawling, New York, purposefully and without authority stole firearms and ammunition . . . from the lockers of club members and retained such firearms and ammunition for his own use.

When this indictment was filed, Torrellas was in state custody. Produced in federal court pursuant to a writ of habeas corpus ad prosequendum in May 2002, he initially entered a plea of not guilty to the federal charge. Federal pretrial proceedings were begun but they, like the state proceedings, were soon delayed by unfortunate events following Torrellas's return to state custody.

In June 2002, while in state custody, Torrellas was seriously injured when another inmate struck him in the head. As a result, Torrellas suffered memory loss and had some difficulty speaking. The district court therefore ordered that Torrellas undergo medical and psychiatric examination to determine whether he was competent to understand the nature and consequences of the proceedings against him and to assist in his defense.

Apparently, several evaluation reports followed. A March 2003 report indicated that Torrellas's injuries prevented him from communicating with others. The government conceded that Torrellas was not then fit to stand trial. The court ordered further evaluation.

A December 31, 2003 evaluation report, however, concluded that Torrellas did not suffer from a mental disease or defect that rendered him unable to understand the nature of the proceedings against him. That report opined that Torrellas was malingering and essentially feigning the extent of his injuries. At a pretrial hearing shortly thereafter, Torrellas's attorney noted his own observation that Torrellas's condition had improved somewhat, and he requested and was granted an adjournment to permit a defense expert to review the December 2003 report. (See Hearing Transcript, January 15, 2004 ("Jan.2004 Competency Tr."), at 2-3.) Defense counsel thereafter sought an additional extension of time to permit his expert to make a thorough assessment of the December 2003 report. The district court granted that request, stating that

if your expert concludes that the report that I have received is flawed or incorrect and you want to contest the findings. . . that your client is competent to stand trial and that he is malingering,. . . we will have a hearing into that.

(Hearing Transcript, February 11, 2004 ("Feb.2004 Competency Tr."), at 3.)

Following completion of the defense expert's review, Torrellas did not seek a hearing, and he raised no further issue as to his ability to understand the charge or the nature of the proceedings against him. Instead, by letter dated June 10, 2004, his counsel informed the court that Torrellas was prepared to plead guilty to the charge of possession of firearms and ammunition that he had stolen from the gun club lockers. (See Letter from Torrellas's attorney Paul E. Davison to Judge McMahon dated June 10, 2004, at 1-2 ("Torrellas Letter").) Further, adverting to the fact that Torrellas had been "assaulted and injured by other inmates at the Westchester County Jail in June, 2002, and he has experienced memory loss and other complications since that incident" (id. at 1 n. 1), Torrellas's attorney proposed that the court determine the factual basis for Torrellas's plea of guilty by listening to the tape-recorded confession given by Torrellas to members of the Sheriff's Office shortly after his arrest in November 2001 ("Confession Tape"):

As requested, I am writing to set forth what we believe to be the appropriate procedure in view of the fact that Mr. Torrellas has no current recollection of the conduct set forth in the indictment.

Rule 11(b)(3), Fed.R.Crim.P., requires the court to "determine that there is a factual basis for the plea." Significantly, this portion of the rule — unlike subsections (b)(1) [rights and warnings] and (b)(2) [voluntariness] — does not require the court to address the defendant personally or to ascertain the factual basis from the defendant himself.

Instead, "so long as the facts relied on are placed on the record at the time of the plea, the district court, in determining whether there was a factual basis for the plea, is free to rely on any facts at its disposal — not just the admissions of the defendant." United States v. Maher, 108 F.3d 1513, 1524-25 (2d Cir.1997)[internal quotations omitted.] The factual basis inquiry can "be made of the defendant, of the attorneys for the government and the defense . . . or by whatever means is appropriate in a specific case." Id., 108 F.3d at 1524, quoting Fed.R.Crim.P. 11 Advisory Committee Note (1974).

In this case, the factual basis for defendant's guilty plea can be amply established by a tape-recorded interview that Mr. Torrellas gave to the Dutchess County Sheriff's Department on November 2, 2001. The instant indictment charges Mr. Torrellas with possession of firearms and ammunition which he stole from the lockers of club members at the Pawling Mountain Club, in violation of 18 U.S.C. § 922(j). During the November 2 interview, Mr. Torrellas was specifically questioned about the theft of the firearms, and he admitted having taken the firearms from lockers at the Club during the course of his employment there.

We propose to play an excerpt of the recorded November 2, 2001 interview to establish the factual basis for the defendant's plea in accordance with Rule 11(b)(3). Although Mr. Torrellas has no current recollection of the subject matter of this recording, the tape is a classic recorded recollection admissible under Rule 803(5), Fed.R.Evid.

(Torrellas Letter at 1-2 (emphasis and emendations in original) (footnote omitted).)

B. The Plea Proceedings

On June 15, 2004, Torrellas entered a plea of guilty to the charge set forth in the federal indictment. At the outset of the plea hearing, the district court stated its understanding

that the factual basis for the defendant's guilty plea will be established in this instance by a tape recording that was made on the evening of the defendant's arrest when he was asked questions at the Dutchess County Sheriff's department and gave answers to same.

(Plea Transcript, June 15, 2004 ("Plea Tr."), at 3.) Upon inquiry by the court as to whether that procedure was satisfactory, the government answered in the...