U.S. v. Padilla-Galarza, 02-1205.

• Decision Date: 12 December 2003
• Docket Number: No. 02-1205.,02-1205.
• Citation: 351 F.3d 594
• Parties: UNITED STATES of America, Appellee, v. José PADILLA-GALARZA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 594

351 F.3d 594

UNITED STATES of America, Appellee, v. José PADILLA-GALARZA, Defendant, Appellant.

No. 02-1205.

United States Court of Appeals, First Circuit.

Heard September 3, 2003.

Decided December 12, 2003.

Juan Ortiz-Lebrón, by appointment of the court, for appellant.

Marcos E. López, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, Chief, Criminal Division, were on brief, for appellee.

Before BOUDIN, Chief Judge, HOWARD, Circuit Judge, and DiCLERICO,^* District Judge.

BOUDIN, Chief Judge.

Jose Padilla-Galarza pled guilty in the district court in Puerto Rico to a drug trafficking crime pursuant to a plea agreement. After the plea but before sentence, Padilla sought unsuccessfully to withdraw his plea. On this appeal, he challenges the decision rejecting his motion to withdraw; he also contests the lawfulness of a sentencing condition imposed by the district court.

Padilla, a former police officer, was indicted in 1999 for conspiring to possess cocaine with intent to distribute (count I) and for aiding and abetting the other members of the conspiracy to possess cocaine with intent to distribute (count II). 21 U.S.C. § 841(a)(1) (2000); 18 U.S.C. § 2 (2000). The indictment made clear that the government proposed to attribute to him in excess of 5 kilograms of cocaine, which would trigger a statutory 10-year minimum sentence. 21 U.S.C. § 841(b)(1)(A) (2000). A further count (count III) sought criminal forfeiture of property acquired through drug proceeds specifically naming an apartment that Padilla had purchased in Isla Verde in San Juan. 21 U.S.C. § 853(a)(1)-(2) (2000).

The government's version of the facts, which Padilla later adopted, are that during the summer of 1995, Padilla was part of a drug conspiracy involving the shipment of cocaine to the New York area, that he assisted others in preparing a shipment in Puerto Rico, that he participated in the theft of a part of the shipment, that he himself received several kilos which he then distributed, and that a portion of the proceeds were used to buy an apartment in Isla Verde.

On September 11, 2000, about a year after his indictment and arrest, Padilla — then represented by counsel Marlene Aponte — entered into a detailed plea agreement with the government. By the agreement, Padilla admitted to the facts just described and agreed to plead to the second and third counts of the complaint. The government agreed to drop the first count and to stipulate with Padilla that he would be held accountable for between 3.5 and 5 kilograms; and the parties further agreed to specific guideline calculations and to a sentence of 60-months' imprisonment which fell within the calculated guideline range.

The agreement was designated as one under Federal Rule of Criminal Procedure 11(e)(1)(c),¹ so that the judge if he accepted the agreement was acquiescing in the sentence. Conversely, if the judge chose not to sentence in accordance with the stipulated sentence, Padilla had the right to withdraw the plea. On the same day, the court conducted a plea hearing, at which Padilla was informed of the charges, agreed to the facts alleged by the government, was apprised again of the 60-month sentence contemplated by the agreement, and listened to the recitation of rights waived by forgoing a trial.

There were a few wrinkles. Padilla, although he had signed the agreement conceding the government's version of the facts and pled guilty to counts II and III, said no more about them at the hearing than he agreed that the government could "probably" prove the facts. On one or two occasions, Aponte answered questions arguably addressed by the court to Padilla himself. Most important to this appeal, some confusion attended the discussion of two topics — the possibility of Padilla serving some of his sentence under the so-called boot camp regime and the forfeiture of the apartment — to which we will return.

Padilla was returned to prison to await sentencing, and Aponte visited him there on November 21, 2000. According to her motion to withdraw filed the following day, Padilla behaved in a distraught manner, said that at least one of the witnesses against him had lied, threatened and insulted Aponte, and insisted that he wanted to go to trial. At about the same time, Padilla filed a pro se motion to withdraw his guilty plea. In December 2000, the district court appointed new counsel and referred the motion to withdraw the plea to a magistrate judge who held a hearing in May 2001 at which Padilla was the only witness.

Padilla claimed at the hearing that he had only cursorily reviewed the agreement and been told by Aponte that he should trust her, that she had written replies for him to make to the court, and that she had misled him about the boot camp program and about the forfeiture in respects described below. He also said that, contrary to his statements to the court at the plea hearing, he had been depressed at the time of the hearing, had not been taking anti-depressants that had been prescribed for him, and was upset by his impending divorce. He said that an "overwhelming amount of exculpatory" evidence — never described in detail — had been kept from him by Aponte.

The magistrate judge, while saying that the motion was not frivolous, nevertheless recommended that the motion be denied. The report said that the plea had been voluntary and not coerced and that Padilla (who had extensive experience as a policeman) had understood the charges and knowingly and intelligently acquiesced in the bargain. The magistrate judge said that the boot camp issue was peripheral and within the ultimate control of the Bureau of Prisons. The report also discussed briefly, and without endorsement, Padilla's basis for his present claim of innocence. Padilla filed objections to the report.

Thereafter, the district court denied the motion to withdraw the plea and sentenced Padilla to the 60-month term of imprisonment specified in the original agreement. As to boot camp, the judge recommended that Padilla be admitted to the program when he had served enough of his sentence to become eligible. The court also imposed a 48-month term of supervised release following imprisonment, adding as a condition that:

The defendant shall submit his person, residence, office or vehicle to a search, conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.

This appeal followed.

The major issue is the denial of the motion for withdrawal of the guilty plea. The district court may allow withdrawal for "a fair and just reason," Fed.R.Crim.P. 11(d)(2)(B),² but the case law suggests that among the relevant factors are whether the plea was voluntary, intelligent, knowing and complied with Rule 11; the force of the reasons offered by the defendant; whether there is a serious claim of actual innocence; the timing of the motion; and any countervailing prejudice to the government if the defendant is allowed to withdraw his plea. United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir.1997). The customary standards of review apply but a good deal of discretion is accorded to the district court. Id. at 348.³

We begin with the questions whether Padilla pled guilty intelligently, knowingly and voluntarily and whether the court adequately observed the formalities imposed by Rule 11, which are intended to assure that the defendant understands the charge and the consequences of the plea. United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir.1995), cert. denied 516 U.S. 827 116 S.Ct. 94, 133 L.Ed.2d 49 (1995). Padilla's current claim that he did not carefully review the written document and that his counsel coached him as to the responses is not by itself enough to show that the plea was uninformed. Padilla assured the court at the time of the plea that he had reviewed the agreement and the government's appended version of the facts and discussed it with counsel.

Ordinarily, a defendant is stuck with the representations that he himself makes in open court at the time of the plea. See United States v. Butt, 731 F.2d 75, 80 (1st Cir.1984). They are more likely to be reliable than later versions prompted by second thoughts, and guilty pleas — often in the defendant's interest — could hardly be managed any other way. Further, the main terms of the agreement were spelled out by the judge and prosecutor in open court, and the government's version of the facts was read aloud.

The Rule 11 colloquy was not perfect — few are unless the judge works mechanically from a script — but the flaws were minor and do not undermine the rule's core objectives. See Cotal-Crespo 47 F.3d at 4-5. True, the court did not spell out the abstract elements of the offense, compare Fed.R.Crim.P. 11(b)(1)(G), but neither is drug trafficking an obscure crime to a policeman. See Cotal-Crespo, 47 F.3d at 5-6 ("complexity of the charges" and "capacity of the defendant" relevant). And while counsel should not have answered once or twice for her client, Padilla's own answers were adequate.

Some trial judges might have pursued the term "probably" in Padilla's concession of what the government could prove, but he had signed an unqualified admission of the crime and pled to it in open court. If a defendant believes he is guilty, he may plead guilty because he thinks the government can "probably" prove his guilt. The Alford issue — that of a defendant who wants to plead guilty while denying that he actually committed the crime — involves quite different concerns. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

Even...