U.S. v. Garcia

• Decision Date: 17 January 1983
• Docket Number: Nos. 80-1597,82-1446,s. 80-1597
• Citation: 698 F.2d 31
• Parties: UNITED STATES of America, Appellee, v. Angeles Ramonita GARCIA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 31

698 F.2d 31

UNITED STATES of America, Appellee, v. Angeles Ramonita GARCIA, Defendant, Appellant.

Nos. 80-1597, 82-1446.

United States Court of Appeals First Circuit.

Argued Nov. 5, 1982.

Decided Jan. 17, 1983.

Michael E. Deutsch, Chicago, Ill., with whom John L. Stainthorp, Chicago, Ill., was on brief, for defendant, appellant.

H. Manuel Hernandez, Sp. Asst. U.S. Atty., San Juan, P.R., with whom Raymond L. Acosta, U.S. Atty., San Juan, P.R., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and HEMPHILL, ^* Senior District Judge.

COFFIN, Chief Judge.

Appellant Angeles Ramonita Garcia appeals from the district court's refusal to vacate her guilty plea, claiming violation of Fed.R.Crim.P. 11, ineffective assistance of counsel, and breach of a plea agreement. As to the last claim we agree, and order appellant re-sentenced to time served. The other claims are without merit.

I

Appellant, now some 70 years old, was charged in October 1976 in a 75-count indictment alleging mail fraud, conspiracy to defraud the United States, and making false statements to a government agency, all arising out of the operation of her beauty and barber school in Puerto Rico. The indictment alleged that appellant, in concert with others, helped veterans attending her school to obtain Veterans Administration payment of false claims by backdating their enrollment dates on which their eligibility for commencement benefits under the G.I. Bill was based. In return, the indictment alleged, appellant's school received tuition payments of $80 per month for the backdated period, and a $100 fee for backdating the VA forms.

On February 12, 1977, appellant pled guilty to three of the 75 counts pursuant to a plea agreement. The remaining 72 counts were then dismissed. Nine months later, on November 18, 1977, appellant was sentenced to five years' imprisonment and a $21,000 fine.

In May 1979, appellant sought a writ of habeas corpus from the U.S. District Court for the Southern District of West Virginia, alleging, inter alia, the grounds presented here. The West Virginia court ordered the bulk of appellant's claims transferred to the District of Puerto Rico, and, while ordering appellant's release on other grounds, stayed resolution of her Rule 11 claim pending its consideration by the Puerto Rico court. ¹ See Garcia v. Neagle, 660 F.2d 983, 987 (4th Cir.1981). In June 1980, the district court of Puerto Rico denied appellant's petition without an evidentiary hearing. On September 11, 1981, this court remanded for an evidentiary hearing on the assistance of counsel issue, and on April 22, 1982, on the basis of three days of hearings, the district court again denied appellant's petition. In the meantime, the Fourth Circuit Court of Appeals had reversed the grant of habeas corpus by the West Virginia court, Garcia v. Neagle, supra, and in May 1982, appellant was granted parole after having served some 28 months in prison.

Simultaneously with the criminal prosecution, the government sought $1.2 million in damages from appellant in a civil suit under the False Claims Act, 31 U.S.C. Secs. 231-235. Partial judgment against appellant for $600,000 was granted in 1978, United States v. Garcia, Civ. No. 76-1417 (D.P.R. Jan. 16, 1978), aff'd 612 F.2d 5701 (1st Cir.1979), and judgment for the remainder of the government's claim followed in 1981, United States v. Garcia, Civ. No. 78-1005 (D.P.R. Nov. 30, 1981), appeal docketed, No. 81-1894 (1st Cir. Dec. 22, 1981).

II

Appellant first claims error in the trial court's failure to advise her of certain factors affecting her parole eligibility--specifically, that the Parole Commission would consider all 75 counts of the indictment in determining her release date, and that the magnitude of the fraud ($900,000) would delay--but not preclude--her eligibility under Commission guidelines. These omissions, she claims, violated Fed.R.Crim.P. 11, and rendered her change of plea unconstitutionally unintelligent and involuntary. We reject both claims.

In its current version, Rule 11 only requires the court to advise a defendant of "the mandatory minimum penalty provided by law if any, and the maximum possible penalty." Johnson v. United States, 650 F.2d 1, 4 (1st Cir.1981). While the word "penalty" is not self-defining, it is evident from the advisory committee notes to the rule's 1974 amendment that "penalty" means the statutory nominal sentence and not actual time in prison after credit for good behavior and parole. See Fed.R.Crim.P. 11 advisory committee note on 1974 amendment (relevant penalties are "usually readily ascertainable from the face of the statute defining the crime").

As for appellant's constitutional claim, as to which appellant cites no authority, we are persuaded that nothing in the principles of due process requires the advice omitted here, or renders appellant's plea unintelligent or involuntary in the absence of that advice. Whether or not due process may ever require advice as to parole consequences, compare, e.g., Hunter v. Fogg, 616 F.2d 55, 60-61 (2d Cir.1980) with Strader v. Garrison, 611 F.2d 61, 63 (4th Cir.1979) and Bell v. North Carolina, 576 F.2d 564, 566 (4th Cir.1978), appellant has not shown that she was unaware of the actual statutory sentencing possibilities, or that the omitted information would have made any difference in her decision to plead guilty. In the absence of such a showing, we cannot say that appellant was denied due process. Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir.1976); Kelleher v. Henderson, 531 F.2d 78, 82 (2d Cir.1976).

III

Appellant next claims that she was denied her Sixth Amendment right to the effective assistance of counsel because her attorney, Mr. Gerardo Ortiz del Rivero, allegedly failed to make adequate investigation of the facts, was unprepared for trial, pressured her into pleading guilty despite repeated protestations of innocence, and assured her that she would receive probation if she pled guilty. In addition, she claims that he failed to make adequate efforts on her behalf at sentencing--in particular, that he inexcusably failed to dispute the government's claim to more than $900,000, or to argue that appellant was unable to repay such a large sum. These defects, she claims, render her plea involuntary and require that it be vacated.

We agree that under our decision in United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978), appellant was entitled to reasonably competent assistance at each stage of the proceedings below, from pre-plea investigation and preparation through advocacy at sentencing. We agree with the district court, however, that appellant was not denied such assistance here. The district court held three days of hearings on appellant's claims. It heard testimony from appellant, her sister, her daughter, and Mr. Ortiz del Rivero. Mr. Ortiz del Rivero denied appellant's claims, and testified that he had investigated the case, was ready for trial, left the plea decision to appellant, and made no guarantees of probation. After hearing the witnesses, and observing their demeanor, the district court gave "complete credibility" to Mr. Ortiz del Rivero, and found that appellant had "failed to demonstrate any errors committed by him, which were the result of neglect or ignorance, rather than from informed professional deliberations." Appellant urges us to disregard these findings, claiming, as we understand her, that the "predilection" of the court for the attorney caused it to make findings that were clearly erroneous.

Appellant makes much of Mr. Ortiz del Rivero's destruction of his case files upon leaving private practice to become Federal Public Defender for Puerto Rico, and his inability to recall the details of his pretrial investigation of the case. The disposal of case files, however, was explained and would itself account, at least in part, for counsel's imperfect recollection, inasmuch as the hearing on appellant's ineffectiveness claim was held more than five years after appellant was indicted and more than four-and-a-half years after she pled guilty. In any event, rational minds could reasonably draw different inferences as to the true extent of counsel's preparation in the case. ² The trial court was fully justified in concluding that the many long visits which appellant testified to were not all spent, as appellant claims, in puffery and arm-twisting by Mr. Ortiz del Rivero, but in counseling, review of a multitude of government documents, and development of the facts, as Mr. Ortiz del Rivero claimed. Significantly, what appellant was confronting was a mammoth prosecutorial effort, involving some 75 counts, 80 prospective witnesses, and a co-defendant turned government witness.

Appellant advances a non-frivolous contention based on Mr. Ortiz del Rivero's performance at sentencing. Since restitution was of announced critical importance to the court's decision on sentence in the criminal proceeding, details of the amount were very much within counsel's responsibility and not, as he argued, beyond his concern since restitution was the subject of a separate civil suit with other counsel. We are not persuaded on the record, however, that his assistance on this issue was ineffective, notwithstanding his disclaimers of concern.

First, Mr. Ortiz del Rivero testified that he and appellant's civil counsel had gone over the figures several times prior to sentencing, with results uniformly unfavorable to appellant and at sharp variance with her claims to owing a much lower amount. See III TR 33-35 (Dec. 9, 1981). Though appellant has had more than four years since she was sentenced in which to come up with supporting evidence, she still proffers only her unsupported assertion that the government's figure was too high. In the meantime, judgment has already gone against her in the government's civil suit. Moreover, appellant's financial resources were evidently greater than she...