U.S. v. Abbott

• Decision Date: 11 January 2001
• Docket Number: No. 00-1325,00-1325
• Citation: U.S. v. Abbott, 241 F.3d 29 (1st Cir. 2001)
• Parties: (1st Cir. 2001) UNITED STATES, Appellee, v. RONALD ANTHONY ABBOTT, a/k/a, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 29

241 F.3d 29 (1st Cir. 2001)

UNITED STATES, Appellee, v.RONALD ANTHONY ABBOTT, a/k/a, Defendant, Appellant.

No. 00-1325

United States Court of Appeals For the First Circuit

Heard January 11, 2001

Decided February 23, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge][Copyrighted Material Omitted]Frank D. Inserni, by appointment of the Court, for appellant.

Edwin Vazquez Berrios, Criminal Division, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief, Criminal Division, Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before Selya, Circuit Judge Coffin and Campbell, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

Defendant-AppellantRonald Abbott("Abbott") appeals from the denial of his motion to withdraw his guilty plea.He also appeals from the denial of his motions (1) to change venue and (2) for discovery of grand jury minutes pursuant to Rule 12andRule 6(e)(3)(c)(ii), and to dismiss the indictment for insufficiency of the evidence.Because we hold that one of the core concerns of Rule 11 was violated, to wit, voluntariness, Abbott must be allowed to withdraw his plea.As the district court's denial of Abbott's additional motions relied on the validity of his guilty plea, we vacate the denials and direct the district court to reconsider those motions to the extent material after remand.

I.BACKGROUND

The relevant facts are as follows.On September 14, 1996, at a gun show in Miami, Florida, Abbott agreed to purchase a MAADI, 7.62 caliber assault rifle, serial number AC0068536, for an acquaintance who was also at the gun show, a Mr. Luis O. Rodriguez-Navarro("Rodriguez-Navarro").The following day, upon deplaning a flight from Miami to San Juan, Puerto Rico, Rodriguez-Navarro and his traveling companion, Orlando Ramos-Rivera("Ramos-Rivera")(who was also at the gun show) were arrested at the Luis Munoz Marin International Airport in San Juan.In their possession were three suitcases containing fourteen firearms, among them the MAADI assault rifle procured for them by the defendant Abbott.

Abbott was on the same flight from Miami to San Juan, but he was neither detained nor arrested until February 20 1997, five months later, in his home town of Del Rio, Texas.The indictment dated February 12, 1997, charged Abbott with four firearm-related counts, all directly related to the seizure of the fourteen firearms from the suitcases of Ramos-Rivera and Rodriguez-Navarro on September 15, 1996.They are: two counts of unlawfully dealing in firearms in violation of 18 U.S.C. § 922(a)(1)(A)(counts I and III); transferring firearms to a non-resident in violation of 18 U.S.C. § 922(a)(5)(count II); and possessing firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k)(count IV).Only counts I and II mentioned the MAADI rifle transferred at the Miami gun show.

Sometime in April, unable to make bail and after having been transferred from Texas to Puerto Rico, Abbott wrote a letter to a young woman inquiring if "Luis [Rodriguez-Navarro] or Orlando [Ramos-Rivera] said anything."In that same letter, Abbott told the young woman that if asked about her knowledge concerning the circumstances of Abbott's arrest, she needn't say anything.Around the same time, Abbott telephoned his mother, Judith Baerga Abbott, with the request that she contact the same young woman to whom he had written and suggest to the young woman that should she be questioned about the circumstances of his arrest, she wasn't to remember anything.Judith Baerga Abbott placed the phone call and fulfilled her son's request.

Within the month, on April 30, 1997, a superceding indictment issued against Abbott, adding a fifth count charging him with witness tampering, and also adding his mother as a co-defendant, charging her with witness tampering as well (count VI).Judith Baerga Abbott was arraigned on May 1, 1997, and released on bond of $35,000 three weeks later.The case of the United States versus Ronald Abbott and Judith Baerga Abbott was set for a jury trial on September 3, 1997, when, on August 27, 1997, Ronald Abbott moved to change his plea.His mother followed suit a week later on September 2, 1997.On October 9, 1997, Chief Judge Carmen Cerezo accepted the guilty pleas of both Ronald Abbott and Judith Baerga Abbott.After taking Ronald Abbott's plea of guilty to Count I (all other counts were dismissed pursuant to a plea agreement), the district court accepted his mother's plea of guilty to count VI, the only count against her.The substance of this appeal concerns the sufficiency of that Rule 11 colloquy between the district court and Ronald Abbott, the factual details of which precede the legal analysis in Part IIinfra.

A brief recitation of the subsequent procedural history will help clarify matters.On January 16, 1998, Ronald Abbott filed a motion to, among other things, change venue and withdraw his guilty plea on the ground that it was involuntary.On February 13, 1998, Judith Baerga Abbott was sentenced to two years of probation.On May 18, 1998, the district court denied Abbott's motion to withdraw his guilty plea and denied as moot his motion to change venue.A flurry of motions to reconsider and to change conditions of release pending sentencing were filed, denied and appealed.Abbott's sentencing hearing was continued over the course of nearly two years due to disagreements about, among other things, the contents of the Pre-Sentence Report.On May 24, 1999, still not sentenced, Abbott filed a motion for discovery of grand jury minutes in order to challenge the indictment.On June 1, 1999, the district court summarily denied the motion.After taking evidence bearing on Abbott's sentence, on January 14, 2000, Chief Judge Cerezo sentenced Ronald Abbott to 46 months in prison and three years of supervised release.

Ronald Abbott filed a notice of appeal on January 21, 2000.As of August 21, 2000, the day his brief was filed with this court, counsel for Ronald Abbott represented that Abbott had finished serving his jail time and was successfully carrying out the terms of his supervised release.

II.ANALYSIS

Abbott's central contention is that his guilty plea was coerced.He asserts that during plea negotiations the government offered to recommend that his mother, upon a plea of guilty to Count VI, serve no jail time if Abbott would plead guilty to Count I.The government would then drop the remaining four counts against him.Abbott characterizes the government's offer as a "package deal" -- i.e., conditioning the acceptance of his mother's guilty plea and her recommended sentence on Abbott's plea of guilty -- the details of which were not disclosed to the district court, contrary to the mandate of Rule 11.SeeFed. R. Crim. P. 11(d)("The court shall not accept a plea of guilty . . . without first . . . 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(e)(2)("If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court. . . .").

The plea agreements between the government and Ronald Abbott and the government and Judith Baerga Abbott that were submitted to the district court in preparation for the Rule 11 hearing on October 9, 1997 do not mention any linkage between the co-defendants' pleas.As reflected by the record in this case, however, after Ronald Abbott pled guilty to Count I, Judith Baerga Abbott pled guilty and, upon the government's recommendation pursuant to her plea under Fed. R. Crim. P. 11(e)(1)(C)¹, she was sentenced to only two years probation.When, later, Ronald Abbott moved to withdraw his plea as being involuntary, the government responded by acknowledging in its Response filed with the court that "during the negotiation process, the pleas of both defendants were linked to some degree.During negotiations, the United States indicated its belief that a plea agreement which reflected a degree of leniency with respect to co-defendantJudith Baerga, the defendant's mother, may be appropriate."The government then went on to defend its non-disclosure of the self-styled "leniency" toward Judith Baerga Abbott by saying that "[w]hile the United States indicated that it would be inclined to be more lenient with the defendant's mother were he to plead guilty, it did not consider the plea agreements to be a 'package deal' within the legal sense."At issue now is whether the failure of the government to disclose to the court at the Rule 11 hearing that the two pleas were linked in the way the government describes renders Abbott's plea of guilty involuntary.We hold that it does.

Withdrawal of a guilty plea prior to sentencing may be granted for any "fair and just reason."Fed. R. Crim. P. 32(e).The district court is to apply this standard liberally.We reverse the district court only for abuse of discretion.SeeUnited States v. Daniels, 821 F.2d 76, 78(1st Cir.1987).We have said, however, that in the Rule 11 context, when any one of its so-called "core concerns" is implicated, a concern such as whether the plea was coerced and not voluntary, seeUnited States v. Cotal-Crespo, 47 F.3d 1, 4(1st Cir.1995), "'discretion' may be somewhat more limited,"United States v. Raineri, 42 F.3d 36, 41(1st Cir.1994).

Full disclosure to the district court of the material terms of plea agreements is necessary to insure that the Rule 11 colloquy is thorough and searching as to defendant's knowing, intelligent and voluntary waiver of the right, among others, to a jury trial.SeeMcCarthy v. United States, 394 U.S. 459, 466(1969)(stating that for a guilty plea to be valid, due process requires that the plea amount to a voluntary and "intentional relinquishment or...