U.S. v. Cotal-Crespo, COTAL-CRESP

• Decision Date: 10 November 1994
• Docket Number: COTAL-CRESP,D,RODRIGUEZ-BOCACHIC,JESUS-DE,Nos. 94-1354,s. 94-1354
• Citation: 47 F.3d 1
• Parties: UNITED STATES, Appellee, v. Jose Ramonefendant-Appellant. UNITED STATES, Appellee, v. Antonio DEJESUS, Defendant-Appellant. UNITED STATES, Appellee, v. Ivanefendant-Appellant. to 94-1356. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

47 F.3d 1

UNITED STATES, Appellee, v. Jose Ramon COTAL-CRESPO, Defendant-Appellant.

UNITED STATES, Appellee, v. Antonio DE JESUS-DE JESUS, Defendant-Appellant.

UNITED STATES, Appellee, v. Ivan RODRIGUEZ-BOCACHICA, Defendant-Appellant.

Nos. 94-1354 to 94-1356.

United States Court of Appeals,

First Circuit.

Heard Nov. 10, 1994.

Decided Jan. 30, 1995.

Rachel Brill, with whom Benicio Sanchez-Rivera, Federal Public Defender, Carlos A. Vazquez-Alvarez, Asst. Federal Public Defender, Old San Juan, PR, and Mariangela Tirado, Hato Rey, PR, were on joint brief, for appellants.

Warren Vazquez, Asst. U.S. Atty., with whom Jorge E. Vega-Pacheco, Acting U.S. Atty., Hato Rey, PR, was on brief, for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

The issue to be decided in this appeal is whether the district court complied with the procedural safeguards mandated by Criminal Rule 11 prior to accepting the three defendants' guilty pleas. We conclude that the plea hearing conducted by the district court, while perhaps somewhat less than ideal, adequately met the requirements of Rule 11. We therefore affirm.

BACKGROUND

On February 17, 1993, a federal grand jury in Puerto Rico indicted Jose Ramon Cotal-Crespo, Antonio De Jesus-De Jesus and Ivan Rodriguez-Bocachica, in Count I, of conspiring to possess with intent to distribute multi-kilograms of cocaine, in violation of 21 U.S.C. Sec. 846. In addition, the indictment alleged, in Counts II and III, that Cotal-Crespo used a communication facility (a telephone) in facilitating the commission of a drug trafficking offense, in violation of 21 U.S.C. Sec. 843(b). On March 3, 1993, the defendants entered pleas of not guilty.

On June 8, 1993, the date their trial was scheduled to begin, defendants requested a change of their respective pleas to guilty. Defendants did not enter a plea agreement with the government. The district court held a change of plea hearing and subsequently accepted defendants' guilty pleas. Sentencing was scheduled for September 9, 1993.

On August 11, 1993, defendants filed a pro se, joint motion requesting withdrawal of their guilty pleas. The district court appointed each defendant new counsel and the motion was argued on March 4, 1994, 847 F.Supp. 991. The district court denied the joint motion in an Opinion and Order issued the same day. Cotal-Crespo was eventually sentenced to 120 months on Count I and to 48 months on Counts II and III, to be served concurrently. Rodriguez-Bocachica and De Jesus-De Jesus were each sentenced to 120 months on Count I. Pending before this Court is defendants' consolidated appeal of the denial of their motion to withdraw their guilty pleas.

DISCUSSION

Defendants advance two arguments in support of their contention that they should have been permitted to withdraw their guilty pleas pursuant to Criminal Rule 11. First, they contend that the district court failed to inform them of the nature of the charges against them and determine that they understood those charges. In support of this contention, defendants maintain that they believed that the eight kilograms of cocaine they were caught with could be split amongst them for sentencing purposes and that they were consequently prejudiced by the district court's failure to explain the nature of the conspiracy charge. Second, defendants contend that the district court failed to inform them of the consequences of their guilty pleas. They assert, inter alia, that the district court did not explain to them that by pleading guilty they waived their constitutional rights to a jury trial, to remain silent, and to confront witnesses against them.

I. The Legal Framework

A. Rule 32(d)

A defendant may withdraw a guilty plea prior to sentencing only upon a showing of "fair and just reason" for the request. See United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir.1989); see also Fed.R.Crim.P. 32(d). There are several factors to consider in determining whether a defendant has met this burden, the most significant of which is whether the plea was knowing, voluntary and intelligent within the meaning of Rule 11. United States v. Allard, 926 F.2d 1237, 1243

                (1st Cir.1991).  The other factors include:  1) the force and plausibility of the proffered reason;  2) the timing of the request;  3) whether the defendant has asserted his legal innocence;  and 4) whether the parties had reached a plea agreement.  Pellerito, 878 F.2d at 1537.   In this case, defendants focus their argument on the alleged Rule 11 violations--contending that these violations establish that their pleas could not have been knowing, voluntary and intelligent
                

B. Rule 11

By entering a guilty plea, a defendant effectively waives several constitutional rights. For that waiver to be valid, due process requires that the plea amount to a voluntary and "intentional relinquishment or abandonment of a known right or privilege." McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); Allard, 926 F.2d at 1244. Rule 11 was intended to ensure that a defendant who pleads guilty does so with an "understanding of the nature of the charge and the consequences of his plea." McCarthy, 394 U.S. at 467, 89 S.Ct. at 1171.

Rule 11 provides in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances ... and

* * * * * *

(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination; and

(4) that if a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind so that by pleading guilty or nolo contendere the defendant waives the right to trial; and

(5) if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded, that the defendant's answers may later be used against him in a prosecution for perjury or false statement.

(d) Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.

Fed.R.Crim.P. 11(c), (d) (emphasis added).

We have distinguished between "technical" violations of Rule 11 and violations of the rule's "core concerns," and held that a violation that "implicates one of the rule's 'core concerns' mandates that the plea be set aside." United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir.1994) (citing Allard, 926 F.2d at 1244). Rule 11's core concerns are: 1) absence of coercion; 2) understanding of the charges; and 3) knowledge of the consequences of the guilty plea. Allard, 926 F.2d at 1244-45. ¹

In determining whether there has been a core violation, we review the totality of the circumstances surrounding the Rule 11 hearing, rather than apply a "talismanic test." See id. at 1245 (citing United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979), cert. denied 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980)). What is critical is the substance of what was communicated by the trial court, and what should reasonably have been understood by the defendant, rather In the absence of a total failure to address one of Rule 11's core concerns, the question is whether irregularities in the plea-taking proceeding affected the defendant's "substantial rights." Fed.R.Crim.P. 11(h). Other than for errors of law, we will overturn the trial judge's decision not to allow the withdrawal of a guilty plea only for "demonstrable abuse of discretion," and the trial court's subsidiary findings of fact in connection with the plea-withdrawal motion are reviewed only for clear error. Allard, 926 F.2d at 1245 (citing Pellerito, 878 F.2d at 1538).

                than the form of the communication.  See Medina-Silverio, 30 F.3d at 3 (emphasizing that there is no "formula of 'magic words' in meeting the requirements of Rule 11").  At a minimum, Rule 11 requires that the trial court address the defendant personally in open court to ascertain that his plea is "voluntary and intelligent."   See id. at 2-3 (citing Fed.R.Crim.P. 11(c))
                

II. The Nature of the Charges

Defendants contend that the trial court failed to determine that they understood the nature of the charges against them, as required by Rule 11(c)(1). See United States v. Ruiz-Del Valle, 8 F.3d 98, 102 (1st Cir.1993). Defendants maintain that they believed that the eight kilograms of cocaine could be "somehow split among the three for sentencing," and, therefore, assert that they were prejudiced by the trial court's failure to explain that each of them would be held responsible for the cocaine found in their collective possession, regardless of any stated intention to later split the drugs.

There are two central difficulties with this argument. First of all, the amount of drugs for which each defendant is held responsible is an issue relevant to sentencing, not to a particular defendant's guilt. See United States v....