U.S. v. Torres-Rosario

• Decision Date: 08 May 2006
• Docket Number: No. 05-1202.,05-1202.
• Parties: UNITED STATES of America, Appellee, v. Johan TORRES-ROSARIO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

447 F.3d 61

UNITED STATES of America, Appellee, v. Johan TORRES-ROSARIO, Defendant, Appellant.

No. 05-1202.

United States Court of Appeals, First Circuit.

Heard March 9, 2006.

Decided May 8, 2006.

Rafael F. Castro-Lang for appellant.

Nathan J. Schulte, Assistant United States Attorney, for appellee. H.S. García, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Senior Appellate Attorney, on brief for appellee.

Before BOUDIN, Chief Judge, SELYA and LYNCH, Circuit Judges.

BOUDIN, Chief Judge.

Johan Torres-Rosario ("Torres") was indicted on August 28, 2003, for conspiracy to distribute controlled substances in an amount that carries a maximum term of life imprisonment. 21 U.S.C. §§ 841(a)(1), 846 (2000). He pled guilty under a plea agreement pointing to a minimum guideline sentence of 188 months, then sought unsuccessfully to withdraw his plea, and now appeals from his conviction and 188-month sentence.

The background events are as follows. Torres surrendered on March 29, 2004, and was held without bail. Beginning in May 2004, Torres' counsel and the Assistant United States Attorney ("AUSA") began discussing the possibility of a plea agreement; for a considerable period, an offer by the government of 11 years' imprisonment was on the table but was never accepted by Torres.

The critical events involve the period of September 2 through September 10, 2004, with Torres' trial scheduled to begin on Monday, September 13, 2004. Seemingly (the chronology is not perfectly clear), Torres and his trial counsel (he is represented on appeal by a different attorney) met with the AUSA on Thursday, September 2; on Thursday, September 9, there was another meeting of the AUSA and counsel; whether Torres was present is unclear (the government says yes and he says no).

During the September 2 meeting, according to Torres, the AUSA stated, "on my children, if you go to trial, I'm going to give you life, if you don't sign today, for each day that goes by, I'll [sic] will give you two more years." Torres refused the 11-year offer but on Thursday September 9 the AUSA disclosed the names of four government witnesses to Torres' counsel. That night, Torres called his lawyer and asked him to make a deal.

On September 10, 2004 — the Friday before the trial date — Torres, who knew only that he had asked his lawyer to make a deal, was brought unexpectedly to the courthouse where his lawyer presented him with a plea agreement modeled on one that had been offered the preceding May; but the amount of drugs stipulated, together with firearms and leadership enhancements previously proposed, would lead to a minimum guideline sentence of 15 years and 8 months, which the government said it would recommend.

Torres now says that he was extremely reluctant to sign but his lawyer pressed him hard, saying: "sign, sign, sign." Torres says that in substance he spent only 15 minutes with his lawyer considering the proposed deal — including translation of the terms of the agreement and whatever discussion took place — before he accepted the terms proposed and was taken before a magistrate judge who (on consent) conducted the Rule 11 hearing and then recommended acceptance of the agreement.

According to Torres, on the same evening (September 10), he had second thoughts and sought to contact his lawyer in order to withdraw the plea. A formal motion for withdrawal of the plea was not filed until September 21, 2004, apparently because the district court was closed for some of the intervening time due to a hurricane that hit Puerto Rico. In the motion, Torres' counsel justified his request on the ground that Torres had only 15 minutes in which to understand the plea agreement and agree to accept it; apparently by coincidence the district court accepted the magistrate judge's recommendation on the same day, perhaps without knowing of the motion.

On November 8, 2004, the district court denied Torres' motion to withdraw the plea. On November 17, 2004, Torres filed two pro se submissions with the district court, advising the court for the first time of the alleged threat by the AUSA and of his own counsel's advice to "sign, sign, sign." Torres also said that his own counsel had failed to describe the AUSA's conduct in the initial motion to withdraw the plea, even though Torres wanted him to do so.

Torres' counsel separately filed a motion for reconsideration of the denial, again arguing that 15 minutes was insufficient time for Torres to comprehend the plea. The district court denied both motions. Just prior to his sentencing hearing Torres submitted a third pro se motion requesting permission to withdraw his plea, repeating and elaborating on earlier claims, further criticizing his own counsel, and also stating that he had asked his counsel to withdraw from representing him.

At sentencing, the district court conducted an abbreviated hearing on the plea withdrawal question, allowing Torres to state his reasons for requesting withdrawal and inviting counsel for both Torres and the government to present arguments. After hearing these statements, the district court again denied the motion to withdraw the plea and sentenced Torres, consistent with the plea agreement, to 188 months in prison.

On this appeal, represented by new counsel, Torres presents two claims: first, that his original counsel did not properly represent him and, because of a conflict of interest, should have withdrawn from the case; and second, that the district court should have allowed Torres to withdraw his plea. The former claim requires a motion under 28 U.S.C. § 2255 (2000); the harder issue is whether Torres should be afforded a full-scale evidentiary hearing as to the plea withdrawal issue.

Torres' first claim rests upon the Sixth Amendment right to assistance of counsel, U.S. Const. amend. VI, but it is not the usual claim that Torres' original counsel bungled the defense-for example by ignoring a meritorious defense or urging Torres to agree to an unsound plea or misconducting the trial. Such a claim, usually hard to sustain, would require Torres to show that counsel's advice was manifestly incompetent and that the incompetence had probably altered the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Instead, Torres says that during the plea withdrawal phase, trial counsel labored under an actual conflict of interest with his client. Such a showing, also resting upon Sixth Amendment case law, is sometimes called a "per se" violation of the Sixth Amendment. United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994); see also Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). What that phrase means is that Torres, if he showed such a conflict, arguably would be entitled to relief based on an assumption of prejudice or, more exactly, without the need to prove prejudice. Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708.

That is the rub. Sixth Amendment attacks on counsel are rarely allowed on direct appeal because they require findings as to what happened and, as important, why counsel acted as he did — information rarely developed in the existing record. So, the defendant is usually remitted to a petition under section 2255. Still, relief can be granted on appeal if the facts are undisputed, sometimes feasible where an actual conflict is claimed. Soldevila-Lopez, 17 F.3d at 486.

In this case no actual conflict of interest could be found "on the undisputed facts." True, Torres asserted in the district court and on this appeal that his counsel failed to protect him against abusive conduct by the AUSA and, instead, pressed him unduly to sign the agreement. This, it is suggested, gave his own trial counsel a conflicting interest to suppress or ignore information that could have helped Torres win his motion to withdraw his plea.

Yet at this stage we have only Torres' word as to what occurred and no explanation from counsel as to either his version of these events or why he made the choices he did. Torres says that his counsel did not "protect" him from improper threats. But the pressure applied by the prosecutor — if we assume Torres' version of the threat is conceded by the government's silence — although perhaps distasteful would not show wrongdoing. See Bordenkircher v. Hayes, 434 U.S. 357, 358-64, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Nor is it clear what counsel could have done to "protect" Torres.

The hard reality is that plea bargaining in criminal cases is not for the delicate minded. Most prosecutors, we think, would avoid, for multiple reasons (including the prospect of appeals like this one), so striking a calibration of the consequences of delay and so severe a threat (if this is what happened). Yet the government's costs rise as trial approaches and the best deal from the prosecutor is ordinarily available before the investment in final trial preparations.

Torres' claim of conflict does not depend on showing that the AUSA misbehaved. He says that his counsel failed to include mention of the AUSA's threat in counsel's motion or reconsideration request, even though Torres so requested and even though most lawyers would probably think it useful context to support the later plea withdrawal motion. It would be enough to show that his own counsel had a significant interest in concealing information that would assist his client.

But there is no obvious reason why trial counsel would have any interest in concealing wrongdoing by the prosecutor, nor would he have much reason to conceal the fact-even if we assume Torres' version to be correct-that he strongly encouraged ("sign, sign, sign") his client to accept the agreement. Of course, counsel might exert undue pressure and wish to conceal that; but "sign, sign, sign" is not improper and might well have been very wise advice.

The only puzzle is why trial counsel's motion to withdraw did not mention the vivid...