U.S. v. Nostratis

• Decision Date: 11 March 2003
• Docket Number: No. 02-10296.,02-10296.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando Novelo NOSTRATIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

321 F.3d 1206

UNITED STATES of America, Plaintiff-Appellee, v. Fernando Novelo NOSTRATIS, Defendant-Appellant.

No. 02-10296.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2003.

Filed March 11, 2003.

Jehan'Ad G. Martinez, Klemm Blair Sterling & Johnson, Hagatna, Guam, for the defendant-appellant.

Marivic P. David, Assistant United States Attorney, Hagatna, Guam, for the plaintiff-appellee.

Appeal from the District Court of Guam; John S. Unpingco, District Judge, Presiding. D.C. No. CR 99-100 JSU.

Before: SCHROEDER, Chief Judge, GOODWIN, and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge.

Fernando Nostratis appeals the district court's denial of his motion to withdraw his guilty plea. He contends that his plea was not knowing and voluntary because he did not understand English well enough to comprehend the terms, conditions, and consequences of his plea agreement. He argues that his inability to comprehend his plea agreement is a fair and just reason for the court to allow him to withdraw his plea under Federal Rule of Criminal Procedure 11(d)(2)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

BACKGROUND

On October 20, 1999, a grand jury returned a four-count superseding indictment against Nostratis: conspiracy to import methamphetamine, 21 U.S.C. §§ 952(a), 960, and 963 (count I); importation of methamphetamine, 18 U.S.C. § 2 and 21 U.S.C. §§ 952(a), 960 (count II); attempt to possess methamphetamine with intent to distribute, 21 U.S.C. §§ 841(a)(1), 846 (count III); and use of a communication facility to facilitate a drug crime, 21 U.S.C. § 843(b) (count IV). After first pleading not guilty, on January 25, 2000, Nostratis changed his plea to guilty on counts I and III pursuant to a plea agreement. The district court conducted a Rule 11 hearing at which it found that Nostratis comprehended the terms, conditions, and consequences of his plea agreement, and accepted his plea.

After negotiating the plea agreement, Nostratis' defense attorney, Stephanie Flores, withdrew as counsel. The court then appointed William Gavras to represent Nostratis. A few months later, Gavras made a motion to withdraw as counsel, which the court denied after a hearing. Nostratis' presentence report came out on January 6, 2002, calculating his sentence range at 135 to 168 months. In accordance with the plea agreement, the government filed for a two-level downward departure based on Nostratis' substantial assistance.

On the morning of March 22, 2002, the date set for his sentencing, Nostratis filed a motion to withdraw his plea. Nostratis, whose native language is Tagalog, argued that he did not understand English well enough to comprehend the terms, conditions, and consequences of his plea agreement and, therefore, he did not knowingly and intelligently enter into the agreement. The court held a hearing on Nostratis' plea withdrawal motion and then denied it, finding that he understood English well enough to comprehend his plea agreement. The court later granted the government's downward departure motion and sentenced Nostratis to 135 months. Nostratis appeals the denial of his motion to withdraw his plea.

STANDARD OF REVIEW

The district court's denial of a defendant's motion to withdraw a plea is reviewed for abuse of discretion. United States v. King, 257 F.3d 1013, 1022 (9th Cir.2001). The court abuses its discretion when it "rests its determination on a clearly erroneous finding of fact." United States v. Sherburne, 249 F.3d 1121, 1125 (9th Cir.2001).

DISCUSSION

Prior to sentencing, a defendant can withdraw his guilty plea only by showing a fair and just reason for withdrawal. Fed.R.Crim.P. 11(d)(2)(B);¹ United States v. Ruiz, 257 F.3d 1030, 1031 (9th Cir.2001) (en banc). A defendant does not always have the right to withdraw a plea because the decision to allow withdrawal of a plea is solely within the discretion of the district court. Id. at 1033; United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995). The defendant has the burden to show a fair and just reason for withdrawal of a plea. United States v. Myers, 993 F.2d 713, 714 (9th Cir.1993).

Nostratis contends that his native language is Tagalog and, therefore, that a Tagalog interpreter should have been present at his Rule 11 hearing to help explain the plea agreement to him. He asserts that, as a consequence of not having the assistance of an interpreter, his acceptance of the plea agreement was not knowing and voluntary.

The district court found that Nostratis understood English well enough to comprehend his plea agreement. In making this determination, the court cited the thoroughness of the Rule 11 plea colloquy, as well as Nostratis' use of English in the Rule 11 hearing and the hearing on Gavras' motion to withdraw as counsel. The court also referred to the testimony of Flores and Probation Officer Maria Cruz during the hearing on Nostratis' motion to withdraw his guilty plea. In addition, the court reasoned that the length of time between Nostratis' plea and his plea withdrawal motion, combined with his knowledge of his likely sentence due to the presentence report, weakened his argument. The record shows that the court did not clearly err in making its factual finding.

The district court correctly examined the thoroughness of the Rule 11 plea colloquy to determine whether Nostratis comprehended his plea agreement. See United States v. Rios-Ortiz, 830 F.2d 1067, 1070 (9th Cir.1987) (stating that Rule 11 requirements "are designed to ensure that the criminal defendant who pleads guilty understands exactly what the plea means"); United States v. Cook, 487 F.2d 963, 965 (9th Cir.1973) (focusing on the thoroughness of the Rule 11 plea colloquy in a plea withdrawal case). Where the district court conducts a thorough Rule 11 hearing, this is strong evidence that the defendant comprehended the plea agreement. See United States v. Signori, 844 F.2d 635, 639 (9th Cir.1988) (upholding a district court's denial of a plea withdrawal motion after a careful review of the Rule 11 hearing transcript); United States v. Castello, 724 F.2d 813, 815 (9th Cir.1984) (upholding the denial of a plea withdrawal motion where the district court conducted a "particularly searching" Rule 11 hearing).

The Rule 11 inquiry here was thorough. The district court first questioned Nostratis to make sure that he understood the plea proceeding and that he was not under the influence of any drugs. Then the court informed Nostratis about the nature of the crime and its elements, the maximum and minimum sentences for his crime, the role of the Sentencing Guidelines, and the constitutional rights that he waived by pleading guilty. Nostratis said that he had read the plea agreement and discussed it with his lawyer, and that he was satisfied with his representation. Finally, Nostratis accepted the plea agreement's statement of facts and pled guilty. All the court's questions and Nostratis' answers were in English; throughout the hearing, Nostratis coherently responded to the court in English without the aid of an interpreter. See Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir.1994) (upholding the district court's decision that no interpreter was necessary because, during the Rule 11 plea colloquy, "[t]he defendant's answers were consistently responsive, if brief and somewhat inarticulate, and he only occasionally consulted with his attorney").

Nostratis points to a particular exchange where the court asked him whether he comprehended his plea agreement, and he responded, "I understand, but not hundred percent clearly from my mind." In isolation, this response seems to support Nostratis' argument. When we view this response in context, however, we find that the court continued to question Nostratis until it was satisfied that he comprehended the plea agreement.²

It is true that, during the hearing on Nostratis' motion to withdraw his plea Nostratis testified through an interpreter that he did not understand English well enough to comprehend his plea agreement. However, the district court could reasonably have chosen to credit Nostratis' declarations made in open court while under oath during the Rule 11 hearing over his subsequent testimony more than two years later, especially since Nostratis knew his likely sentence at that time. See Castello, 724 F.2d at 815 ("The court was entitled to credit Castello's testimony at the Rule 11 hearing over her subsequent affidavit."); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989) ("`[S]olemn declarations in open court carry a strong presumption of verity.'")(quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)). Nothing in the Rule 11 hearing suggests that the district court clearly erred in its determination that Nostratis understood English well enough to comprehend his plea agreement.

The district court also cited the hearing on Gavras' motion to withdraw as counsel as evidence of Nostratis' ability to understand English. At that hearing, Gavras attested to Nostratis' English abilities, saying that Nostratis had shown through his speech and written letters a "pretty good understanding of the [sentencing] guidelines, which we know are complicated." At one point, Gavras said that he and Nostratis "talked at length" in English about issues in the case, and Nostratis "understood every word" of the conversation. Gavras also told the court that he had asked Nostratis if he needed a Tagalog interpreter, which Nostratis declined.³ In fact, the record shows that during this hearing Nostratis spoke competently in English on his counsel's ineffectiveness for three pages of transcript, interrupted only by a few short questions from the court.

In its order, the district court also relied on the testimony of Flores, Nostratis' former counsel, and Cruz, who interviewed Nostratis for his presentence report. Flores testified that she went over...