U.S. v. Ramos, 85-1975

• Decision Date: 30 January 1987
• Docket Number: No. 85-1975,85-1975
• Citation: 810 F.2d 308
• Parties: UNITED STATES of America, Appellee, v. Hector Acevedo RAMOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 308

810 F.2d 308

UNITED STATES of America, Appellee, v. Hector Acevedo RAMOS, Defendant, Appellant.

No. 85-1975.

United States Court of Appeals, First Circuit.

Argued Oct. 9, 1986.

Decided Jan. 30, 1987.

William M. Kunstler, New York City, with whom Ronald L. Kuby and Luis F. Abreu Elias, Hato Rey, P.R., were on brief for defendant, appellant.

H. Manuel Hernandez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for appellee.

Before BOWNES, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

Defendant Hector Acevedo Ramos appeals from an order of the district court, 619 F.Supp. 570 (D.P.R.1985), denying a presentence motion to withdraw his guilty plea. Appellant raises inter alia claims of ineffective assistance of counsel, prosecutorial misconduct, involuntariness of his plea, newly-discovered evidence, and the prosecution's breach of the plea agreement, as grounds for withdrawal. Because the trial court acted within the broad discretion conferred by Fed.R.Crim.P. 32(d) in rejecting Acevedo's contentions, we affirm. ¹

Background

On April 17, 1985, a federal grand jury returned an indictment against Acevedo for aiding and abetting, and for conspiracy to affect interstate commerce by extortion, robbery, and kidnapping, in violation of 18 U.S.C. Secs. 2, 1951 ("Gordon's Jewelry" case, Criminal No. 85-108(GG)). Acevedo retained Julio E. Gil de Lamadrid and Julio Morales Sanchez to represent him in the Gordon's Jewelry trial. Acevedo had been on trial on similar charges involving the robbery of jewelry ("Taillex" case, Criminal No. 84-373(HL)). Attorneys William M. Kunstler, Ronald L. Kuby, both appearing pro hac vice, and Luis F. Abreu-Elias, local counsel, represented Acevedo in that case.

On April 25, the jury in the Taillex case returned a guilty verdict. Faced with the prospect of other trials, appellant--through his son--first contacted an Assistant United States Attorney ("AUSA") with the intention of reaching an agreement in the Gordon's Jewelry case. AUSA's office refused to negotiate except through an attorney.

In a letter dated May 1, Acevedo unconditionally appointed Morales and Lamadrid as his exclusive representatives for any present or future indictment returned against him. On June 4, the parties reached a plea agreement. The government agreed to recommend a sentence of 20 years imprisonment in the Gordon's Jewelry case, to be served concurrently with a 28 year term in Taillex, and not to seek any fines or forfeiture of appellant's property in Puerto Rico. The agreement, however, did not bind civil or criminal law enforcement authorities of the Commonwealth of Puerto Rico. In return, Acevedo promised to plead guilty in Gordon's, plead guilty to a future RICO indictment based on "numerous murders and robberies," and waive his right to appeal the Taillex conviction.

On June 4, Acevedo filed in the district court a pro forma petition to enter a guilty plea to the Gordon's Jewelry indictment. Appellant stated in the form that he had a college degree, was not under the influence of narcotics, and had not been hospitalized for an emotional condition. He expressed satisfaction with counsel Lamadrid and Morales' performance. He further stated that he understood the charges against him, the maximum sentence which could be imposed, and the waiver of a panoply of federal constitutional rights which a guilty plea would entail. Appellant affirmed he pled guilty, uncoerced, and only because in fact he was guilty. Counsel certified having explained the charges, the consequences of a guilty plea, and that he pleaded understandingly and voluntarily.

On that day, the district court held a change of plea hearing, which corroborated in all respects appellant's assertions in the plea petition. The court below entered a finding of competence to plead. The court read the indictment, explained to appellant the elements of the offenses, and the maximum penalties provided by law, to which appellant responded he understood. The court introduced the plea agreement into the record. The trial judge clarified that a plea agreement under Fed.R.Crim.P. 11(e)(1)(B), as here, did not bind the court. ² Thus, the judge could reject the government's recommendation and impose the maximum penalty authorized by law. The judge also explained that, if he rejected the recommendation, defendant had no right to withdraw the plea. Appellant stated he understood this.

Assistant United States Attorney H. Manuel Hernandez proceeded to summarize the evidence against Acevedo. According to the government, several individuals kidnapped a manager of a Gordon's jewelry store, coerced him to provide certain information and materials, and then robbed over $400,000 worth of jewelry from the store. A conspirator would testify as to Acevedo's involvement in the planning of the robbery. The government would present evidence that Acevedo, the president of a jewelry distribution business, had subsequently bought the stolen jewelry for $30,000. Even though Acevedo did not narrate his own version of events, he openly admitted in court to the acts charged in the indictment. Apparently recognizing the strength of the evidence, counsel Lamadrid conceded he lacked proof to rebut the government's case. Only then did the district court accept his guilty plea.

Sentencing in Taillex was held on June 5. The government recommended there:

The defendant, as part of [the plea] agreement has already pled guilty and has agreed to save the government the expense of going through several trials and an appeal. We view that as something of value ...

We believe the defendant did give us some information of value and we believe [the recommended sentence] would be ... appropriate ...

Joint Appendix at 87.

It is alleged that the government's recommendation was less than enthusiastic. Attorney Kunstler further claims error on the ground that, prosecutorial remarks linking appellant to organized crime, "undercut" the recommendation in Taillex. The remarks were:

AUSA (Hernandez): ... [W]e submit this court cannot sentence in a vacuum ... You heard the testimony of Chichi Derieux who is an admitted member of organized crime ... We believe that it's appropriate for this court to consider in its sentencing that [Acevedo is not] a one time offender here who got mixed up in something for the first time in his life.

This is a man who has been involved in many, many crimes. [T]he court ... has had much evidence before it about Mr. Acevedo['s] ... involvements in organized crime here in Puerto Rico.

Joint Appendix at 75-76.

The Taillex court sentenced Acevedo to consecutive terms of 15 and 20 years and imposed a $10,000 fine.

Against this background, on June 17 (12 days after the Taillex sentence), but prior to sentencing in this case, appellant through counsel Lamadrid and Morales filed a motion to withdraw his guilty plea. In a sworn statement, Acevedo asserted his innocence, and claimed, without any details, to have exculpatory evidence to prove it. He further alleged lack of understanding as to the consequences of guilty pleas in the Gordon's Jewelry and RICO cases. With respect to the court's voluntariness finding, he allegedly became "emotionally depressed" after the Taillex conviction and remained as such throughout the change of plea hearing. Acevedo claims he pled guilty only to spare himself and his family the burdens of another trial. Concededly, he pled guilty against the advice of counsel Morales and Lamadrid.

In support of the withdrawal motion, attorney Kunstler objected to the waiver of the Taillex appeal. In a sworn statement, he claimed lack of knowledge of the plea negotiations affecting the Taillex case in which he had represented Acevedo. Kunstler stated that Morales and Lamadrid did not try the Taillex case. From that he inferred counsel were not competent to advise Acevedo about the likelihood of success on a Taillex appeal. Kunstler essentially claimed that counsel negligently waived the Taillex appeal without evaluating its merits. Sanchez and Lamadrid filed a motion rebutting the allegations of incompetence.

On November 15, the district court in the Gordon's Jewelry case sentenced Acevedo to 35 years imprisonment, to be served concurrently with the Taillex sentence. Acevedo again maintained his innocence, and claimed that counsel and others had erroneously advised and induced him to plead guilty. Without holding an evidentiary hearing, the district court denied the motion to withdraw. This appeal ensued.

Discussion

Defendant's right to withdraw a guilty plea is not absolute. See, e.g., United States v. Burnett, 671 F.2d 709, 712 (2d Cir.1982). A court may grant a withdrawal application filed before sentencing upon a defendant's showing of a "fair and just reason." Fed.R.Crim.P. 32(d), codifying Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); see Annotation, Withdrawal of Plea of Guilty or Nolo Contendere Before Sentence, Under Rule 32(d) of the Federal Rules of Criminal Procedure, 6 A.L.R.Fed. 665 (1971 & Supp.1986).

Although the standard for a presentence withdrawal remains a liberal one, this court will not set aside the district court's findings unless a defendant unequivocally shows an abuse of discretion. United States v. Keefe, 621 F.2d 17, 20 (1st Cir.1980); Nunez Cordero v. United States, 533 F.2d 723, 725 (1st Cir.1976). What constitutes a "fair and just" reason in light of the abuse of discretion standard is best resolved by the courts on a case-by-case basis. See Rule 32(d) advisory committee note.

Several factors are relevant. One consideration, albeit insufficient per se for withdrawal, is defendant's assertion of legal innocence at the time of his guilty plea. See United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975) (citing ...