U.S. v. Mescual-Cruz

• Decision Date: 15 October 2004
• Docket Number: No. 02-2668.,No. 02-2670.,02-2668.,02-2670.
• Parties: UNITED STATES of America, Appellee, v. Geraldo MESCUAL-CRUZ; Nelson Mescual-Cruz, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

387 F.3d 1

UNITED STATES of America, Appellee, v. Geraldo MESCUAL-CRUZ; Nelson Mescual-Cruz, Defendants, Appellants.

No. 02-2668.

No. 02-2670.

United States Court of Appeals, First Circuit.

Heard September 10, 2004.

Decided October 15, 2004.

Appeal from the United States District Court for the District of Puerto Rico, José Antonio Fusté, Chief Judge.

Laura Maldonado Rodríguez for appellant Geraldo Mescual-Cruz.

Guillermo A. Macari-Grillo for appellant Nelson Mescual-Cruz.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón, Assistant United States Attorney, Chief, Criminal Division, and Germán A. Rieckehoff, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, SCHWARZER,^* Senior District Judge.

LYNCH, Circuit Judge.

This is an appeal from denials of motions to withdraw guilty pleas which involve the law on package pleas.

Defendants Geraldo Mescual-Cruz (Geraldo) and Nelson Mescual-Cruz (Nelson) who are brothers, along with four co-defendants pled guilty to federal drug conspiracy charges on April 8, 2002. The pleas were part of a package deal, that is, the government's offer was contingent on all defendants entering plea agreements. Sometimes these are referred to as "wired" pleas, that is, two or more pleas are linked. The package deal was reached late in the afternoon on the first day of trial, after jury impanelment in the morning, but before witnesses were presented. Earlier pre-trial plea negotiations had not succeeded in reaching an agreement.

This Circuit's case law requires particular care be exercised both by the government and by the court in package guilty plea situations due to certain risks inherent in package pleas which could affect the voluntariness of the plea. United States v. Abbott, 241 F.3d 29, 34 (1st Cir.2001); United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir.1996); United States v. Martinez-Molina, 64 F.3d 719, 733 (1st Cir.1995); United States v. Daniels, 821 F.2d 76, 80 (1st Cir.1987). The district court, informed by the government that this was a package deal situation, had continued the trial at the request of defense counsel to give time for negotiations. The court was informed that the negotiations were successful and took the pleas. The court, at the Rule 11 colloquy, asked some questions individually of each defendant and some of the group. Satisfied that the pleas were voluntary, the court accepted the pleas from all defendants.

Over two months later, Geraldo filed two motions to withdraw his pleas. He asserted other grounds than that the plea was part of a package deal, but did say he had felt pressured. Nelson, Geraldo's brother, also filed a motion to withdraw. That motion also did not rely on the package nature of the deal. Both motions alleged a different sort of pressure stemming from related murder charges pending against Nelson and Geraldo in Puerto Rico court. The Commonwealth charge had not been resolved when the defendants pled guilty on April 8, 2002, to the federal charges. The defendants had unsuccessfully argued for postponement of the federal trial until the Commonwealth murder charges were resolved (eventually they were acquitted).

The court denied both motions to withdraw after a hearing in which each defendant declined the opportunity to testify. Neither defendant argued that the package nature of the plea deal put them under such pressure that their pleas were not voluntary. That argument is made for the first time on this appeal from the denials of the motions to withdraw.

Both argue that it was plain error for the district court to fail to perform a more searching inquiry into whether the package plea had been entered into voluntarily. They ask this court to remand the case to allow them to withdraw their guilty pleas and proceed to trial or, in the alternative, to require the district court to hold an evidentiary hearing on the voluntariness of their guilty pleas. Finally, Geraldo argues that the district court's failure to have the interpreter translate his allocution statements into English violated the Jones Act, 48 U.S.C. § 864, and the Court Reporter Act, 28 U.S.C. § 753(b), and effectively deprived him of his right to allocution.

We find that the district court did not commit plain error in denying the motions to withdraw, and the Jones and Court Reporter Acts errors were harmless. We affirm.

I.

Geraldo and Nelson are brothers. At the time of the plea, they were 32 and 30 respectively. On August 30, 2001, the grand jury returned an indictment against Geraldo and Nelson and seven other co-defendants. Count One charged them with conspiracy to possess with intent to distribute in excess of one kilogram of heroin, five kilograms of cocaine, five kilograms of cocaine base, and in excess of fifty pounds of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two of the indictment sought forfeiture under 18 U.S.C. § 982.

On September 12, 2001, Geraldo and Nelson were arrested, pursuant to an arrest warrant issued on August 30, 2001. On September 25, 2001, Geraldo and Nelson pled not guilty to both counts of the indictment. The court set a trial date of April 8, 2002, and the jury trial was set to begin for Geraldo and Nelson, and four other co-defendants, Nelson Delgado-Vazquez, Juan A. Torres, Yazugui Alvarado-Maldonado, and Angel Muniz-De Jesus.

The morning the trial started, counsel for all of the defendants approached the prosecutor and asked if the government would extend a plea offer. The prosecutor had made an earlier plea offer, but it had expired on April 1, 2002. The government said it would not simply extend the old offer; it made a new offer which increased the length of the sentences and made any plea contingent on it being a package deal.

Apparently the court was told there were negotiations and did not resume the trial immediately after the lunch break. Later that afternoon at 5:00 pm, the court noted that it had interrupted the trial to permit negotiations. One of the defense counsel asked to delay further because he was still explaining the pleas to his client. At that point, two defendants, Muniz and Alvarado, had tendered pleas. The court indicated that it would take those two pleas and resume trial in the morning as to the other four defendants.

When defense counsel asked for more time, the court asked why counsel had not considered all this before trial. Counsel for Torres said they had considered it before that day and that he had brought the offer to his client several weeks before. Counsel for Delgado then said, "I think there is a reasonable guarantee that if we wait for another ten minutes everyone will plea[d]." The government then put on the record that its earlier plea offer had expired on April 1 and the new offer to each defendant was contingent on it being a package deal. This was the first time that the court was informed of the package nature of the plea. Counsel for Geraldo and Nelson said nothing.

The court granted the extra time, telling the defendants that they should know nobody was forcing them and no one could force them to plead guilty. After that break (the record does not indicate its duration) the court was presented with guilty pleas from all defendants. Each of the defendants was present.

The court proceeded to take the defendants' guilty pleas, informing the defendants that it would have to ask several questions to determine whether the "plea of guilty is done with knowledge of consequences, aware of the fact that you are waiving a number of rights." The court then addressed each defendant individually in turn, asking questions concerning the defendant's competency to plead guilty, his satisfaction with his representation, and whether he had ample opportunity to discuss with his attorney the implications of his guilty plea. The court received affirmative answers from both Nelson and Geraldo.

After being satisfied that each defendant was competent to plead guilty, the court addressed the defendants as a group. It asked questions concerning whether they understood the rights afforded to them under the Constitution, the rights which they were giving up by pleading guilty. Having discussed those matters, the court asked whether each still wanted to plead guilty and received an affirmative response. The court asked each whether he had seen the indictment, and received affirmative answers.

The court once again addressed the defendants individually to explain the charges against each, what the government would have to prove, and the possible sentence that each might receive. The defendants affirmed that they understood.

The court addressed the group as a whole and asked, "Has anyone threatened you or forced you in any form or fashion or induced you to plead guilty in this case?" (Emphasis added). Each answered no.

Once again, the court addressed each defendant individually to discuss the specifics of each plea agreement and the facts to which each defendant was stipulating. The court confirmed individually that each had done what he was accused of doing. The court then turned to the defendants as a group and asked, "Has anybody made any promises to any one of you to induce you to plea?" (Emphasis added). All defendants answered no. The final question asked by the court was "[is there] any reason why these pleas should not be accepted?" All attorneys answered no. After ascertaining from the prosecutor that she had the necessary evidence to proceed to trial, the court accepted the pleas.

On June 28, 2002, over two months after the guilty plea was accepted, Geraldo filed a pro se request for withdrawal of his guilty plea. On July 19, 2002, this motion was followed by a verified motion to withdraw the guilty plea. Nelson filed a verified motion to withdraw his guilty plea on July 16, 2002. The government responded in opposition to...