U.S. v. Amado Nunez, Cr. 99-374 SEC.

• Decision Date: 27 December 2000
• Docket Number: No. Cr. 99-374 SEC.,Cr. 99-374 SEC.
• Citation: 127 F.Supp.2d 53
• Parties: UNITED STATES of America, Plaintiff, v. Jose AMADO NUNEZ, Defendant.
• Court: U.S. District Court — District of Puerto Rico

127 F.Supp.2d 53

UNITED STATES of America, Plaintiff, v. Jose AMADO NUNEZ, Defendant.

No. Cr. 99-374 SEC.

United States District Court, D. Puerto Rico.

December 27, 2000.

COPYRIGHT MATERIAL OMITTED

Maritza González-de-Miranda, U.S. Attorney's Office District of P.R., Civil Division, San Juan, PR, for plaintiff.

Joseph C. Laws, Epifanio Morales-Cruz, Federal Public Defender Office, San Juan, PR, Maria H. Saldoval, San Juan, PR, for defendant.

OPINION AND ORDER

CASELLAS, District Judge.

Before the Court are Defendant's motion to withdraw his plea of guilty and to dismiss the Indictment. (Docket # 42). For the reasons set forth below, Defendant's motions are DENIED.

Factual Background

An Indictment against Defendant was returned on December 8, 1999, charging him with trafficking and attempted trafficking of counterfeited tax stamps of the Treasury Department of Puerto Rico, a violation of 18 U.S.C. § 2320. Similarly, he was charged with transportation and attempted transportation of the same stamps from the Dominican Republic to Puerto Rico, a violation of 18 U.S.C. § 2314. Arraignment and bail hearings were heard on December 15, 1999. At the hearings, Defendant plead not guilty to both counts of the Indictment. Since Defendant had previously established his inability to obtain counsel, First Assistant Public Defender Epifanio Morales represented him at the hearings.

On January 5, 2000, a status conference was held to inform the Court about the status of Rule 16 Discovery matters and the possibility of a plea agreement. Additional time was requested and granted, until February 11, 2000, to inform the Court whether Defendant would plead guilty or go to trial. On February 11, 2000, Defendant filed a Change of Plea Motion.

On February 23, 2000, a change of plea hearing was held, at which time Defendant was again represented by Epifanio Morales. Prior to the hearing, through counsel, Defendant negotiated a plea agreement with the Government, pursuant to Fed.R.Crim.P. 11(e)(1)(A). At the hearing, the Court reviewed and accepted the plea agreement, and set Defendant's sentencing hearing for June 27, 2000.

However, on March 3, 2000, Attorney Morales requested leave to withdraw as counsel, which was granted on March 27, 2000. On April 3, 2000, Defendant's present counsel Maria Sandoval was appointed through the Clerk of the Court. After a series of continuances for various reasons, Defendant informed the Court that he intended to file the instant motion seeking to withdraw his plea of guilty and to dismiss the Indictment.

1. Motion to Withdraw Guilty Plea Applicable Law/Analysis

"Once a guilty plea has been entered, a defendant has no absolute right to withdraw that plea." United States v. Austin, 948 F.2d 783 (1st Cir.1991). Therefore, the First Circuit has held that when analyzing a motion to withdraw a guilty plea under Fed.R.Crim.P. 32(d), such a motion "can be granted before sentencing only upon an affirmative showing of a fair and just reason." United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994). This standard requires the defendant to persuade the court that a fair and just reason exists. See United States v. Gonzalez, 970 F.2d 1095, 1100 (2nd Cir. 1992).

In testing Defendant's proffered justifications for withdrawal, "a court must look at the overall situation, most prominently (1) the plausibility of the reasons prompting the requested change of plea; (2) the timing of the defendant's motion; (3) the existence or nonexistence of an assertion of innocence; and (4) whether, when viewed in light of emergent circumstances, the defendant's plea appropriately may be characterized as involuntary, in derogation of the requirements imposed by Fed.R.Crim.P. 11, or otherwise legally suspect." Parrilla-Tirado, 22 F.3d at 371. Finally, even if the four factors are established by the Defendant, "the nisi prius court still must evaluate the proposed plea withdrawal in relation to any demonstrable prejudice that will accrue to the government if the defendant is permitted to alter his stance." Id.

In the present matter, Defendant alleges that he plead guilty involuntarily. The basis for this averment is that on February 23, 2000, he was ineffectively counseled, by attorney Morales, to execute a document entitled "Waiver Regarding: Motion to Dismiss Based on Opinion Regarding the Appointment of the United States Attorney Guillermo Gil-Bonar." This waiver clearly indicates that Defendant waived his right to continue seeking a dismissal of his Indictment, if the Supreme Court were to vacate the Court of Appeals decision in United States v. Fermin Hilario, 218 F.3d 19 (1st Cir.2000). However, according to the Defendant, the waiver constitutes a renunciation of valuable rights, that were never incorporated in the plea agreement. Therefore, he concludes that the Government failed to provide anything in exchange for the waiver. The Court will now apply Defendant's argument to the Rule 32 framework.

1. The Plausibility of the Asserted Reasons

"A defendant bent on withdrawing a guilty plea must demonstrate a plausible reason for doing so." Parrilla-Tirado, 22 F.3d at 371, citing United States v. Tilley, 964 F.2d 66, 72 (1st Cir.1992). In this case, Defendant argues that he received nothing in return for his waiver; and therefore, he should be allowed to withdraw his guilty plea. This argument is premised on the oft stated theory that plea agreements are contractual in nature. See, e.g., United States v. Atwood, 963 F.2d 476, 479 (1st Cir.1992); United States v. Hogan, 862 F.2d 386, 389 (1st Cir.1988). While Defendant's analogy is in some regards proper, it "can only be carried so far, [because] [a]ny time a defendant pleads guilty, he receives some built-in benefits...." Parrilla-Tirado, 22 F.3d at 371.

Despite Defendant's contention, it is clear that he received the full benefit of the bargain by entering the plea agreement. A cursory reading of the agreement itself evidences this fact. Especially where it states:

Jose Amado Nunez was charged in a two count Indictment, with a violation of Title 18, United States Code, Section 2320(a), intentionally and knowingly traffic or attempt to traffic eight hundred and eighty seven counterfeit tax stamps from the Treasury Department of Puerto Rico, and Section 2314, intentionally, unlawfully and fraudulently transport and cause to transport in foreign commerce from [the] Dominican Republic a falsely made and forged tax stamp of the Treasury Department of Puerto Rico on November 25, 1999. In this case the defendant will plead guilty to COUNT ONE of the Indictment and the United States will request the dismissal of COUNT TWO of the Indictment upon sentencing.

(Docket # 22, ¶ 1). This clause makes it is abundantly clear that Defendant received something of value for his plea — to wit: the dismissal of count two upon sentencing. Obviously, if Defendant had not entered the plea agreement, he could have been prosecuted and possibly convicted on this count. Thus, count two remained a viable option for the Government, and its dismissal clearly benefitted the Defendant.

Instead of acknowledging this benefit, Defendant diverts his attention from the plea agreement to the waiver form. This strategy is misguided, for it is Defendant's burden to prove that he received nothing of value from the Government by entering the plea agreement; and he simply can not meet this burden.

2. Timing

"The timing of a motion to withdraw a guilty plea is significant. Delayed requests, even if made before sentencing, are generally regarded with disfavor." Parrilla-Tirado, 22 F.3d at 373, citing United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir.1989). "The rule of thumb is that the longer a defendant waits before moving to withdraw his plea, the more potency his motion must have in order to gain favorable consideration." Parrilla-Tirado, 22 F.3d at 373.

In this case Defendant informed the Court that he wished to file the present motion on October 30, 2000. This request came shortly after his new attorney received the Pre Sentence Report. Normally, the timing of such motions "serve to cast a long shadow over the legitimacy of his professed reasons for seeking to change course." Id. However, in this case, given that Defendant's request came shortly after his new counsel became familiar with the case, the Court can not conclude that his request is dilatory or necessarily represents a belated change of heart after the Pre Sentence Report arrived. Therefore, we will not hold the timing of Defendant's motion against him.

3. Claim of Innocence

When deciding whether a plea withdraw is fair and just, an important factor is whether the Defendant asserts his innocence. If he does, it may weight "the scales in favor of withdrawal, and conversely, the absence of a claim of innocence weights the opposite pan of the scales." Id.; citing United States v. Doyle, 981 F.2d 591, 596 (1st Cir.1992). In his motion, nowhere does Defendant profess his innocence of the crime charged. In fact he seems to freely admit that he committed the acts charged. However, he contends, in his motion to dismiss the Indictment, that these acts should have subjected him to prosecution in the local tribunal, instead of its federal counterpart. (Docket # 42, at 14). Therefore, this argument cuts deeply against allowing Defendant to withdraw his plea of guilty.

4. Voluntariness

The crux of Defendant's motion rests on his averment that his plea was not voluntary because his counsel advised him to waive his right to contest the appointment of Assistant United States Attorney Gil. When a defendant argues that his plea was not voluntarily entered because of ineffective assistance of counsel, the question then becomes "whether counsel's performance in advising guilty pleas fell below the standard of performance of reasonable proficient counsel and whether, by such inadequate performance, [defendant] was induced to enter...