878 F.2d 1535 (1st Cir. 1989), 88-2068, United States v. Pellerito

Docket Nº:88-2068, 88-2091.
Citation:878 F.2d 1535
Party Name:UNITED STATES of America, Appellee, v. Giuseppe PELLERITO, a/k/a Joseph El Italiano, Defendant, Appellant. UNITED STATES of America, Appellee, v. Hector RIVERA-MARTINEZ, a/k/a El Men.
Case Date:June 30, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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878 F.2d 1535 (1st Cir. 1989)

UNITED STATES of America, Appellee,


Giuseppe PELLERITO, a/k/a Joseph El Italiano, Defendant, Appellant.

UNITED STATES of America, Appellee,


Hector RIVERA-MARTINEZ, a/k/a El Men.

Nos. 88-2068, 88-2091.

United States Court of Appeals, First Circuit

June 30, 1989

Heard April 6, 1989.

Rehearing and Rehearing En Banc Denied in No. 88-2091 Sept. 5, 1989.

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Frank A. Rubino, Coconut Grove, Fla., with whom Mark Anthony Cristini was on brief, for appellant, Giuseppe Pellerito.

Carlos Lopez De Azua for appellant, Hector Rivera-Martinez.

Everett M. de Jesus, Asst. U.S. Atty., Dept. of Justice, with whom Daniel F. Lopez-Romo,

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U.S. Atty., Hato Rey, P.R., was on briefs, for the U.S.

Before CAMPBELL, Chief Judge, and BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Some three dozen individuals, including appellants Hector Rivera-Martinez and Giuseppe Pellerito, were charged in a multi-count indictment as members of a huge drug ring allegedly headed by Rivera-Martinez. As trial approached, the district court entertained a steady stream of guilty pleas from various defendants. Trial began on June 6, 1988 and ended abruptly when the remaining defendants admitted their culpability. Appellants were among the last holdouts: Pellerito pled guilty to the sole count in which he was charged on June 7 and Rivera-Martinez pled to four counts the next day. 1

The jury was discharged and the trial dismantled, but the matter was far from finished. Prior to sentencing, appellants filed motions seeking to withdraw their pleas. The district court held separate evidentiary hearings and denied each motion by written opinion. United States v. Pellerito, 701 F.Supp. 279 (D.P.R.1988); United States v. Rivera-Martinez, 693 F.Supp. 1358 (D.P.R.1988). The court also denied certain further motions filed by Rivera-Martinez. Defendants' ensuing appeals were consolidated for briefing and argument.

We begin our analysis by rehearsing certain legal principles applicable to both appeals. Then, we discuss separately the defendants' reasons for plea withdrawal and the lower court's rulings. Finally, we deal with the denial of Rivera-Martinez's last round of motions.


The plea-withdrawal test, the yardstick for measuring claims of ineffective legal assistance, and the standard of appellate review are relevant to both of these appeals. We summarize the applicable law.

  1. Plea Withdrawal.

    Having chosen to plead guilty, a defendant possesses no absolute right to retract his plea. See United States v. Buckley, 847 F.2d 991, 998 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983). When he tries to do so, the rule of decision depends upon the timing of the attempt. When, as here, a defendant asks to annul his plea prior to sentencing, the court should permit withdrawal if there is a "fair and just reason" for doing so. Fed.R.Crim.P. 32(d); Buckley, 847 F.2d at 998; Kobrosky, 711 F.2d at 454. In determining whether a fair and just reason has been proffered, a number of factors figure in the equation, including (1) the force and plausibility of the reason; (2) the timing of defendant's change of heart; (3) whether defendant has asserted his legal innocence; (4) whether the parties had reached (or breached) a plea bargain; and (5) most importantly, whether the defendant's guilty plea can, in light of the proffered reason and the disclosed circumstances, still be regarded as voluntary, intelligent, and otherwise in conformity with Fed.R.Crim.P. 11. See generally Buckley, 847 F.2d at 999; United States v. Daniels, 821 F.2d 76, 79-80 (1st Cir.1987); United States v. Ramos, 810 F.2d 308, 312-13 (1st Cir.1987); Kobrosky, 711 F.2d at 455. If a defendant advances a plausible reason, the court should also weigh the prejudice, if any, to the government. Ramos, 810 F.2d at 313; Kobrosky, 711 F.2d at 455.

  2. Ineffective Assistance.

    In this case, both appellants--albeit on different facts--charge that deficient legal representation contributed to their "mistaken" guilty pleas. Even prior to sentencing, defendants who maintain such a position must meet the accepted tests for

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    ineffective assistance before being allowed to withdraw pleas on this basis. Ramos, 810 F.2d at 314. Specifically, a defendant must demonstrate both that counsel's representation "fell below an objective level of reasonableness," and that cognizable prejudice flowed therefrom, i.e., that he "would not have pleaded guilty and would have insisted on going to trial" if not for counsel's shortcomings. Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

  3. Appellate Review.

    In cases of this genre, courts of appeals should accord district courts' decisionmaking considerable respect. Confronted with an attempt at plea retraction, the trial judge must make an idiocratic, particularistic, factbound assessment--an assessment which is facilitated because the judge has overseen pretrial proceedings, conducted the Rule 11 inquiries, accepted the original guilty plea, and heard at first hand the reasons bearing upon its withdrawal. Appellate courts, being less directly familiar with the circumstances and lacking the district judge's "feel" for the case, ought ordinarily to defer to the decision reached on the front lines. It follows that, other than for errors of law, we will disturb the trial judge's refusal to allow plea withdrawals only for demonstrable abuse of discretion. See Buckley, 847 F.2d at 998; Kobrosky, 711 F.2d at 454; see generally Independent Oil & Chemical Workers v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988) (describing test for abuse of judicial discretion); United States v. Hastings, 847 F.2d 920, 924 (1st Cir.) (same), cert. denied, --- U.S. ----, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988). The trial court's subsidiary factfinding in connection with plea-withdrawal motions can be set aside only for clear error. As in kindred contexts, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

    With this short prelude, we turn to the first of the appeals.


    The district court concluded that Pellerito's guilty plea was fully informed and competently made; that his claims of ineffective assistance were meritless; and consequently, that he had failed to evince a fair and just reason for retraction. See Pellerito, 701 F.Supp. at 296. We treat independently with two issues which appellant hawks with especial fervor, and then assay the balance of relevant situational factors.

  4. The "Misunderstood" Plea Bargain.

    Pellerito claims that his trial attorney, Emanuel Moore, led him to believe that, as part of the plea agreement, he would receive immunity from threatened prosecutions in New York and Florida. He contends alternatively that, for whatever reason, he thought (erroneously) that further prosecutions in other jurisdictions would be barred, thus rendering his guilty plea involuntary. 2 The district court found defendant's claim that Moore misled him to be "not credible." Id. at 294. Among other things, the court pointed to testimony by Pellerito's local counsel, attorney Julio Morales-Sanchez, that it had been explained to Pellerito "that the plea agreement was not binding on other jurisdictions." Id. The decision to believe Morales-Sanchez on this point, rather than appellant, was the trial judge's to make and should not be disturbed.

    Defendant's professed belief that, regardless of what he was told, he would be held harmless from prosecutions in other jurisdictions, is material only to the extent it was objectively reasonable. United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988). Here, it was not. First, Pellerito

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    had ample incentive to plead wholly apart from fear of mushrooming prosecutions. Because the Anti-Drug Abuse Act of 1986, 21 U.S.C. Sec. 960, did not apply to the plea as structured, and the plea agreement obligated the prosecutor to recommend a maximum sentence of 18 years (a recommendation that the trial court followed), appellant's potential exposure was lowered materially. 3

    Second, during the change-of-plea hearing, defendant assured the district judge that no other promises had been made, no other terms negotiated. There was no suggestion that immunity from prosecution elsewhere had been considered, let alone guaranteed. As the court below perspicaciously observed, "it strains credibility to suggest that [defendant's supposed] misconception as to the grant of immunity would not have come to light" in the lengthy, detailed Rule 11 colloquy. Pellerito, 701 F.Supp. at 295. We will not permit a defendant to turn his back on his own representations to the court merely because it would suit his convenience to do so.

    It is true that, at one point during the Rule 11 proceedings, defendant stated that he was pleading to "conspiracy enterprise in Puerto Rico, New York, New Jersey and Florida." Counsel seizes upon this single locution and claims it proves that Pellerito believed his plea was intended to foreclose prosecution in other venues. It is possible that such an inference might be drawn from Pellerito's response--but it is certainly not the only permissible inference, nor even the most plausible one. The defendant was pleading guilty to participation in a multistate conspiracy. He could simply have been describing the places where, in his view, the...

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