U.S. v. Lopez

• Decision Date: 04 December 1990
• Docket Number: No. 90-1671,90-1671
• Parties: 34 Fed. R. Evid. Serv. 279 UNITED STATES of America, Appellee, v. Christian LOPEZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 33

944 F.2d 33

34 Fed. R. Evid. Serv. 279

UNITED STATES of America, Appellee, v. Christian LOPEZ, Defendant, Appellant.

No. 90-1671.

United States Court of Appeals First Circuit.

Heard Dec. 4, 1990.

Decided Sept. 11, 1991.

Joel D. Landry with whom Connors & Kilguss, Providence, R.I., was on brief, for appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before BREYER, Chief Judge, and CAMPBELL and CYR, Circuit Judges.

CYR, Circuit Judge.

On December 12, 1989, Providence, Rhode Island, police officers forcibly entered the apartment of appellant Christian Lopez pursuant to a valid search warrant. Once inside, the officers found David Mateo in one bedroom, and appellant's mother, along with appellant's daughter, in another. Appellant was seized as she was attempting to exit through the back stairway. Another individual, appellant's former brother-in-law, was apprehended in the backyard. The search of the apartment disclosed 30.8 grams of heroin, some of it secreted beneath the kitchen sink and some hidden beneath the mattress on which codefendant The district court rejected codefendant Mateo's plea agreement, which called for the government to recommend that the charges against appellant Lopez be dismissed. Mateo nevertheless decided to plead guilty to one count of possessing heroin, with intent to distribute, and one count of conspiring to possess heroin, with intent to distribute. The court accepted Mateo's plea to the substantive charge but rejected his plea to the conspiracy charge, which was later dismissed at the request of the government.

                David Mateo was found.   The police discovered heroin packaging paraphernalia in a plastic bag on the bedroom floor, and in a nearby closet.   After she was advised of her rights, appellant told the police that her mother and former brother-in-law knew nothing about the drugs.   Only appellant and Mateo were arrested and charged
                

At trial, appellant admitted that she was the lessee of the apartment and that Mateo had been living there since October 1981. She admitted that she and Mateo shared the bedroom in which was located the mattress under which some of the heroin had been discovered, the same bedroom in which heroin packaging paraphernalia had been found. Appellant denied any knowledge that there was heroin in the apartment. Appellant was convicted of conspiracy to possess heroin, with intent to distribute, in violation of 21 U.S.C. § 846, but the jury acquitted her on the substantive charge. She was sentenced to serve a fifteen-month prison term.

I

DISCUSSION

A. Mateo's Plea Agreement

Under its plea agreement with David Mateo, the government agreed to "recommend to the Court that the indictment against codefendant Christian Lopez be dismissed." The district court refused to approve the plea agreement out of concern that Mateo might have felt "undue pressure" to plead guilty in response to the government's offer to dismiss all charges against Lopez. Thereafter, Mateo entered an unconditional guilty plea, which the court accepted. The prosecutor stated in open court that since "the Court has rejected the plea agreement between the parties, ... the government doesn't feel bound by any of the conditions ... in the plea agreement." Lopez and her attorney were present at Mateo's change of plea hearing. Undaunted, Lopez contends on appeal that the charges against her should have been dismissed in any event since Mateo's plea agreement, though never approved, was "satisfied," as far as the government was concerned, by Mateo's guilty plea. We find no merit in her contention.

We note at the outset that the district court acted well within its discretion in rejecting the agreement. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) (acceptance of plea agreement left to discretion of court); United States v. Papaleo, 853 F.2d 16 at 19 (1st Cir.1988) (same). Every plea agreement is subject to court approval pursuant to Fed.R.Civ.P. 11(e). See United States v. Perez-Franco, 873 F.2d 455, 460 (1st Cir.1989). ¹ A plea agreement entailing lenity to a third party "imposes a special responsibility on the district court to ascertain [the] plea's voluntariness," United States v. Buckley, 847 F.2d 991, 1000 n. 6 (1st Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); see also United States v. Daniels, 821 F.2d 76, 80 (1st Cir.1987), due to its coercive potential. Sensitive to the potential pressure on Mateo in these circumstances, the district court did not err in refusing to approve the agreement.

Plea agreements generally are governed by contract principles. See, e.g., United States v. Anderson, 921 F.2d 335, 337 (1st Cir.1990); United States v. Papaleo 53 F.2d 16, 18 (1st Cir.1988). However, even if third party beneficiary principles were applicable to a plea agreement in a criminal case, and we are unaware of authority to that effect, a nonparty, at least absent a showing of detrimental reliance, could assert no right to performance under an agreement which was never enforceable between the contracting parties due to the failure of a condition precedent; here, the approval of the district court.

The district court was careful to make absolutely certain that Mateo's entry of a guilty plea was in no manner contingent upon any provision in the unapproved plea agreement. Nor does Lopez suggest that the rejection of Mateo's plea agreement placed her in any worse position than before the agreement was negotiated. Absent a showing that the government gained unfair advantage as a result of the agreement, cf. Papaleo, 853 F.2d at 18 ("Due process concerns may ... arise prior to the entry of a guilty plea when the defendant detrimentally relies upon the government's promise") (emphasis added), once a plea agreement has been rejected by the court the government is under no obligation to abide by its terms. See United States v. Ocanas, 628 F.2d 353, 358 (5th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1981) (as a general rule, either party to plea agreement may withdraw its consent until plea bargain has been accepted by court).

B. Recusal

Appellant contends that the district judge should have recused himself because "his impartiality might reasonably be questioned." See 28 U.S.C. § 455(a). According to appellant, during the rule 11 hearing at which Mateo's plea was rejected, see Fed.R.Crim.P. 11, the judge improperly commented on appellant's case by comparing it to an unrelated case in which another woman had pled guilty to a drug offense. Appellant argues that the comparison made by the judge indicated prejudice against her, which later affected the tenor of the trial.

The standard for determining whether recusal is appropriate under 28 U.S.C. § 455(a) is an objective one; the judge must determine "whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the [movant], but rather in the mind of the reasonable man." United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). The movant may not rely on mere allegations but must "suppl[y] a factual basis for an inference of lack of impartiality." United States v. Giorgi, 840 F.2d 1022, 1036 (1st Cir.1988). A decision not to recuse is reviewed only for abuse of discretion. Id. at 1034; Panzardi-Alvarez v. United States, 879 F.2d 975, 984 (1st Cir.1989).

The record reflects that the judge's only purpose in referring to the case in which another woman pled guilty to a drug violation was to help explain the judge's refusal to permit dismissal of the charges against appellant, given the evidence adverted to in the government's proffer. The judge intimated no opinion as to appellant's guilt or innocence, or on the merits of any defense available to her. Appellant likewise points to no conduct or statement on the part of the presiding judge at trial which conceivably could afford an objective basis for forming a reasonable doubt concerning the judge's impartiality. Thus, she has not presented a minimal "factual basis for an inference of lack of impartiality." Giorgi, 840 F.2d at 1036.

C. Evidentiary Issues

At trial, appellant sought to cross-examine one of the police officers about the police officer's testimony in another, unrelated federal court trial at which a different presiding judge had granted a motion for new trial, in part because the judge had disbelieved the officer's testimony. Appellant sought to proceed under Evidence Rule 608(b), which permits cross-examination, in the discretion of the court, into specific instances of the conduct of a witness "if probative of truthfulness or untruthfulness." Fed.R.Evid. 608(b). The district court ultimately precluded the proposed cross-examination, however, on the ground that its probative value would be outweighed by its potential for unfair prejudice. See Fed.R.Evid. 403.

Our review is severely hampered by the absence of an offer of proof as to the nature of the intended inquiry. See Fed.R.Evid. 103(a)(2) ("In case the ruling is one excluding evidence, [error may not be predicated on the ruling unless] the substance of the evidence was made known to the court by offer or was apparent from the context...."). See also United States v. Smith, 940 F.2d 710, 712-13 (1st Cir.1991) (applying Fed.R.Evid. 103(a)(2)). Like its counterpart, Evidence Rule 103(a)(1), rule 103(a)(2) is designed " 'to alert the trial court and the other party to the grounds of [any] objection so that it may be addressed or cured.' " United States v. Castiello, 915 F.2d 1, 4 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 787, 112 L.Ed.2d 849 (1991) (quoting United States v. Walters, 904 F.2d 765, 769 (1990...