U.S. v. Cruz

• Decision Date: 08 June 1983
• Docket Number: No. 82-1600,82-1600
• Parties: UNITED STATES of America, Appellee, v. Carlos Rodriguez CRUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 111

709 F.2d 111

UNITED STATES of America, Appellee, v. Carlos Rodriguez CRUZ, Defendant, Appellant.

No. 82-1600.

United States Court of Appeals, First Circuit.

Argued Feb. 11, 1983.

Decided June 8, 1983.

Nicolas Nogueras, Jr., San Juan, P.R., for appellant.

Jose A. Quiles, U.S. Atty., Hato Rey, P.R., for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The question in this case is whether a district court judge can unqualifiedly accept a bargained guilty plea and subsequently reject it on the basis of information contained in the presentence reports of the defendant and two codefendants. A rehearsal of the proceedings below is necessary.

Defendant-appellant, Carlos Rodriguez Cruz, was indicted on July 8, 1981, for aiding and abetting and possessing with intent to distribute one hundred twenty-five grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), a felony, and in violation of 18 U.S.C. Sec. 2. Three other defendants were also so charged. In the second count of the two-count indictment one of the other three defendants was charged with assault by use of a dangerous weapon (handgun) on DEA agents.

Trial was scheduled for October 11, 1981. At that time two of the other defendants pled guilty, ¹ and sentencing was set for December 11 so that the court could go over the presentence reports. Pursuant to a plea bargain between defendant and the government, the United States Attorney filed an information charging defendant with simple possession of cocaine in violation of 21 U.S.C. Sec. 844(a), a misdemeanor. As part of the plea bargain the government agreed to recommend that defendant be placed on probation pursuant to 21 U.S.C. Sec. 844(b)(1). The alternative sentence available under the information was imprisonment for not more than one year, a fine of not more than $5,000, or both. 21 U.S.C. Sec. 844(a). Under the indictment offense the sentence for a first offender, as defendant was, is a term of imprisonment of not more than fifteen years, a fine of not more than $25,000, or both, plus a special parole term of at least three years. 21 U.S.C. Sec. 841(b)(1)(A).

After being informed of the plea bargain and the government's recommendation, the court questioned the defendant extensively to determine if he understood "the rights you are waiving; the punishment provided by statute, and that there is a basis in fact for your change of plea." The defendant was informed that the prosecutor's recommendation of probation was not binding on the court and that he could receive the maximum sentence under the statute of a fine of $1,000 or imprisonment for not more than one year, or both. At the conclusion of defendant's interrogation the court stated:

After having addressed the Defendant personally, after having ascertained that he knows what is contained in the information filed this morning with the Court and that he knows his right to a trial by jury and the effects of pleading guilty, whereby he is waiving all his rights; he knows what the maximum punishment is and he is voluntarily pleading guilty, therefore I will accept the same and a judgment of guilty would be entered as to the one count information.

I will order a pre-sentence report and at the time the same has been prepared we would set the case for sentence. The defendant may remain under the same conditions of bond.

There is no doubt that the district court complied fully with Federal Rule of Criminal Procedure 11(c). It is also clear that the court unqualifiedly accepted the plea bargain. It did not defer acceptance or rejection of it until it had an opportunity to consider the presentence report, as it might have under Federal Rule of Criminal Procedure 11(e).

On December 11, the day of sentencing, the court rejected the plea bargain. It stated that after reading the presentence report of the other two defendants who had pled guilty as well as that of defendant, it thought that all three were equally involved. The court said that in light of the sentences of four and eight years imprisonment given to the other two defendants, justice would not be done in defendant's case if probation for one year were the sentence.

After the court rejected the plea bargain, it stated that the matter would be assigned to another judge. The government then moved orally to dismiss the information and proceed to trial on the original indictment. The court refused to rule on this motion on the grounds of recusal.

On December 22, 1981, the government moved in writing to dismiss the information and have the case proceed to trial on the original indictment. The judge reconsidered the extent of his recusal and granted the motion in a detailed opinion. 539 F.Supp. 231 (D.P.R. 1982). The case was then assigned to another judge for trial.

Defendant filed a notice of appeal claiming, inter alia, that his constitutional right against double jeopardy had been violated and citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), as the basis for an interlocutory appeal. At the same time, defendant also filed a motion for stay of trial, which was granted.

An impressive number of federal cases are nearly unanimous in holding that jeopardy attaches upon the court's acceptance of a guilty plea. E.g., United States v. Sanchez, 609 F.2d 761, 762 (5th Cir.1980); United States v. Cambindo Valencia, 609 F.2d 603, 637 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980); United States v. Bullock, 579 F.2d 1116, 1118 (8th Cir.) (per curiam), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978); United States v. Jerry, 487 F.2d 600, 606 (3d Cir.1973); United States v. Rocco, 397 F.Supp. 655 (D.Mass.1975); Stowers v. State, 266 Ind. 403, 363 N.E.2d 978, 982 (Ind.1977); see also United States v. Williams, 534 F.2d 119, 121 (8th Cir.) (assuming without deciding), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976).

In United States v. Sanchez, 609 F.2d 761, a case strikingly similar to the one at bar, a defendant was tried and convicted of distribution of heroin after the trial court rejected a plea bargain for simple possession. While the Fifth Circuit rejected the defendant's claim of double jeopardy, it emphasized that the district court had expressly accepted the plea "temporarily," pending consideration of the probation report ("I will only accept the plea temporarily, I will tell you. I could change my mind about it when I get the Probation Report.... I will take the plea bargain at this time and at a later time when I have had an opportunity to investigate it further I will determine whether to accept it."). Here, by contrast, the court expressed no such reservation.

None of these cases, however, analyze in depth the reasons for the application of the double jeopardy rule and all of them are factually distinguishable from the situation before us. ² For several reasons we do not think that jeopardy must attach automatically and irrevocably in all instances when a guilty plea is accepted. Acceptance of a guilty plea to a lesser offense carries no implied acquittal of the greater offense and for this reason is not the same as a verdict. See Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981); Hawk v. Berkemer, 610 F.2d 445 (6th Cir.1979). Moreover, the "ordeal" of a Rule 11 proceeding is significantly different from the ordeal of trial: Rule 11 hearings are not trials, and the defendant here was never in jeopardy of conviction on any charge except the lesser offense to which his plea was offered. We agree that jeopardy must attach somewhere and bar reconsideration at some point, but acceptance of the plea is not the only possible point.

It could be argued that jeopardy should attach to a guilty plea only upon imposition of sentence and formal pronouncement or entry of judgment. This would give maximum flexibility to the court while still fixing a clear point of finality and repose. See United States v. Combs, 634 F.2d 1295, 1298 (10th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981). This approach was trenchantly criticized by Judge McKay in his dissent in the same case. 634 F.2d 1300-04.

Another approach, and in our view the preferable one, would be to analogize judicial abortion of a previously accepted guilty plea and plea bargain to judicial declaration of a mistrial after jeopardy has attached--i.e., to hold that jeopardy attaches upon acceptance of the guilty plea, but to allow the district court to rescind acceptance at any time before sentencing and judgment upon a showing of "manifest necessity," the standard for declaring a mistrial over the defendant's objection, Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). It might even be argued that since double jeopardy interests are less implicated by plea bargains and Rule 11 proceedings than by mistrials, a showing of less than "manifest necessity" should suffice.

Even, however, were we to adopt such a standard, the result would not be different in this case because the procedure followed by the district court contravened Federal Rules of Criminal Procedure 11(e) and 32(c). Although there may be times when a judge can change his mind after accepting a guilty plea without violating the double jeopardy clause, he must do so within the framework of the Federal Rules.

Federal Rule of Criminal Procedure 11(e) allows a court, upon notification that the defendant's guilty plea is the result of a plea bargain with the government, to do one of three things. It may accept the agreement or reject it, or may defer its decision until there is an opportunity to review the presentence report. Fed.R.Crim.P. 11(e); see United States v. Blackwell, 694 F.2d 1325, 1338 (D.C.Cir.1982); 8 R. Cipes, I. Hall & M. Waxner, Moore's Federal Practice p 11.05, at...