U.S. v. Coronado

• Decision Date: 16 June 1977
• Docket Number: No. 75-3609,75-3609
• Citation: 554 F.2d 166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben Garza CORONADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 166

554 F.2d 166

UNITED STATES of America, Plaintiff-Appellee, v. Ruben Garza CORONADO, Defendant-Appellant.

No. 75-3609.

United States Court of Appeals Fifth Circuit.

June 16, 1977.

Rehearing Denied July 20, 1977.

John W. Clark, Mission, Tex. (Court-appointed), for defendant-appellant.

Ruben Garza Coronado, pro se.

Edward B. McDonough, Jr., U. S. Atty., Anna E. Stool, George A. Kelt, Jr., John P. Smith, James R. Gough, Jr., Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

Ruben Garza Coronado appeals from his conviction upon a guilty plea of conspiracy to possess cocaine with intent to distribute. 21 U.S.C. §§ 846, 841(a)(1). Coronado claims the transcript of the rule 11 proceeding at which the court accepted the plea was inadequate because the court failed to impart to him an understanding of the charge and because he was not placed under oath. Coronado also levels several attacks on the voluntariness of the plea. We find that the district court acted properly in accepting the plea on the basis of the facts and contentions before it. We decline to resolve Coronado's other claims, which he never presented to the district court and with respect to which our record is silent. We thus conclude that all claims are either without merit or improperly presented at this stage. We affirm.

I.

Coronado originally pleaded not guilty to the three-count indictment. The court appointed counsel to represent him. On July 3, 1975, two weeks before the trial date, the court received a letter from Coronado requesting new counsel. On July 7 Coronado and his counsel appeared before a magistrate for a hearing on the request. The magistrate advised them that the July 17 trial date would not be passed, and Coronado withdrew the motion.

On the day of trial, July 17, Coronado changed his plea to guilty. He executed a three page oath stating that the plea was made voluntarily and with an understanding of the charges. The statement recounted that the only agreement Coronado had reached with the United States Attorney was that in return for a guilty plea to count one (conspiracy to possess with intent to distribute), the government would not prosecute counts two and three (separate acts of distribution). ¹

In addition to executing the written statement, Coronado appeared at a rule 11 proceeding. ² The court did not place him under oath. The court announced that Coronado was charged with "knowingly and intentionally" conspiring to possess cocaine with intent to distribute. The government attorney read the indictment, which charged that Coronado and two codefendants "knowingly and intentionally did combine, conspire, confederate, and agree together and with each other, and with other persons unknown . . . to unlawfully possess, with intent to distribute, a quantity of cocaine . . . ." The indictment as read at the hearing also set forth four overt acts. One was a meeting at which a codefendant introduced Coronado to a government undercover agent as the person who was to supply the cocaine for a delivery that had been discussed earlier. Another overt act was a later meeting at which Coronado and a different codefendant delivered six ounces of cocaine to the government agent.

The judge told Coronado that plea bargains were permissible but that the court itself did not participate in them. Upon the court's request to state any bargains, the United States Attorney said that the government had agreed to dismiss counts two and three in return for the plea to count one. He stated further that if Coronado were to testify in the prosecution of another defendant, the government would make his cooperation known to the probation office for "whatever consideration that they would want to give that information." Coronado's attorney and Coronado himself both attested to the accuracy of the government's statement of the bargain. Coronado twice reiterated that he had no other bargains.

The court had the United States Attorney state some of the facts on which the charge was based. The statement included a description of the meetings recounted in the indictment. Coronado said that he had done the things described. He declared that he was pleading guilty because he was guilty. ³

The court accepted the plea and at a subsequent proceeding imposed the maximum sentence of fifteen years plus a three year special parole term. The imprisonment was to run concurrently with Coronado's twenty-five year state sentence on another conviction.

Coronado did not move to withdraw his plea under Fed.R.Crim.P. 32(d), nor did he take any other steps to apprise the district court of the arguments advanced in this court. Without assistance from his court-appointed counsel, Coronado himself perfected this appeal. ⁴

Coronado's pro se filings with this court raise numerous issues. He claims that his plea was coerced, that he received ineffective assistance of counsel, that the Government failed to fulfill its promise of a light sentence, that no one explained to him the meaning of "conspiracy", that the indictment was defective because not signed by the grand jury foreman, and that his conspiracy conviction was improper because all alleged co-conspirators were acquitted.

Coronado's court-appointed attorney, charged with the responsibility of representing Coronado on appeal, took the position that the appeal was frivolous and attempted to withdraw. After the Fifth Circuit called a colorable claim to his attention, Coronado's attorney filed a brief on the merits. He argued that the failure to place Coronado under oath at the rule 11 proceeding vitiated the plea and that the rule 11 transcript failed to disclose that Coronado understood the charges against him.

II.

At the outset we must note our limited capacity to review many of these issues at this juncture. Our record contains only the formal filings in this case, the rule 11 transcript, and the sentencing transcript. Coronado did not move under Fed.R.Crim.P. 32(d) to withdraw his plea, nor has he taken any other steps to raise his contentions before the district court. Under such circumstances reasonable appellate practice calls for determining only whether the district court acted properly in accepting the plea and imposing sentence on the basis of the record and contentions then before it. See United States v. Mims, 440 F.2d 643 (8th Cir. 1971) (on direct appeal from guilty plea where there was no rule 32(d) motion court would consider only whether there was compliance with rule 11); United States v. Briscoe, 428 F.2d 954 (8th Cir.), cert. denied, 400 U.S. 966, 91 S.Ct. 378, 27 L.Ed.2d 386 (1970) (same); cf. United States v. Cooper, 410 F.2d 1128 (5th Cir. 1969) cert. denied, 400 U.S. 868, 91 S.Ct. 111, 27 L.Ed.2d 107, (1970) (on appeal from denial of rule 32(d) motion court would not consider contentions not presented to district court); Wilkins v. United States, 351 F.2d 609 (5th Cir. 1965) (on appeal of denial of 28 U.S.C. § 2255 relief from guilty plea court would not consider contentions not presented to district court); Eller v. United States, 327 F.2d 639 (9th Cir. 1964) (court on direct appeal of guilty plea where there was no rule 32(d) motion would not consider claim that plea was induced by unkept promise of leniency). ⁵

In accordance with this standard, we decline to resolve Coronado's claims of coercion and ineffective counsel. Nothing presented to the district court suggested such claims might have merit or put the court on notice that a plea should not be accepted without further inquiry along these lines. Coronado advances no contention that the rule 11 proceeding itself was deficient in regard to these matters. The district court therefore did not err in accepting the plea.

We reiterate, however, that our conclusion should not be given significance inconsistent with the limited procedural context. With respect to these claims which do not affect the adequacy of the rule 11 proceeding and which the district court was not required to notice on its own motion, we decline at this stage to decide the merits or even to determine whether a hearing is appropriate. We do so, however, without prejudice to Coronado's right to present the claims to the district court in the first instance, either under Fed.R.Crim.P. 32(d) or 28 U.S.C. § 2255. See United States v. Mims, supra (affirming guilty plea conviction not challenged below without prejudice to claims of ineffectiveness of counsel and involuntariness of plea); United States v. Briscoe, supra (affirming guilty plea conviction not challenged below without prejudice to claim of involuntariness). ⁶

The issues that remain are therefore whether the rule 11 transcript discloses that Coronado understood the charges and whether failure to place him under oath invalidates the plea. ⁷

III.

The "understanding" issue arises from the district court's failure to make any attempt to explain to Coronado the meaning of "conspiracy". That term is not so simple that a lay person can be expected necessarily to understand it. The word "conspiracy" does not have a certainty, as attested by the thousands of cases that have attempted to unravel its mysteries. Although we do not seek to impose elaborate requirements upon district courts, we believe that they should go further than the court below to ensure that a conspiracy defendant understands the charge. To a pro se habitue of a prison, legal linguistics are often a foreign tongue. We do not think we burden our trial judges in asking that they inform a guilty pleader of some aspects of legal argot and other legal concepts that are esoteric to an accused. District courts have jury instructions readily available and can certainly frame without undue difficulty an appropriate statement apprising a defendant of the nature of the charge to which he ...