United States v. Lara-Joglar

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1964
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL LARA-JOGLAR, a/k/a Picu, a/k/a Rafito, a/k/a Pito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Geoffrey M. Raux, Michael J. Tuteur, Matthew A. Ambros and
Foley & Lardner LLP, on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-
Vélez, United States Attorney, on brief for appellee.
October 5, 2010
Per Curiam. This is Rafael Lara-Joglar's direct appeal
from his conviction and sentence for his participation in a multi-
defendant drug-trafficking conspiracy. The defendant's principal
arguments on appeal are that his guilty plea was involuntary and
unknowing and that his plea agreement as a whole was
unconscionable. We will discuss those arguments before addressing
the enforceability of the appeal waiver in his plea agreement
because, if the guilty plea or the plea agreement as a whole is
invalid, then the appeal waiver provision of the agreement is
obviously invalid as well.
The parties disagree as to the applicable standard of
review of these claims. The government argues that, because the
defendant did not seek to withdraw his guilty plea before
sentencing, this court's review of the validity of his plea is only
for plain error. The defendant's opening brief is silent on the
standard of review (in violation of Rule 28(a)(9)(B) of the Federal
Rules of Appellate Procedure), but his reply brief argues that,
even though the claims were not preserved, a de novo standard of
review applies. Because we conclude that the guilty plea and plea
agreement were valid under either standard, we need not resolve
that disagreement.
The major common premise of this group of arguments is
that although the defendant's own participation in the underlying
offense was allegedly limited, he was charged along with 58 co-
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defendants with participating in a drug-trafficking conspiracy
involving large amounts of drugs, guns (including machine guns),
and several murders and that the government had massive physical,
audio-visual, and documentary evidence that might unfairly be
attributed to him, especially given the potentially self-serving
testimony of at least five cooperating witnesses, resulting in a
much higher sentence than he received by pleading guilty. A
further allegedly coercive circumstance was the court's summary
denial of his newly appointed counsel's motion to continue the
trial after his original counsel was forced to withdraw, due to a
conflict of interest, less than three weeks before trial. He
argues that those circumstances coerced him into pleading guilty
rather than going to trial and facing the likelihood of "guilt by
association"; that, in light of those circumstances, the court
should have taken additional steps to ensure that his plea was
voluntary and knowing; and that these same circumstances forced him
to accept the government's proposed plea agreement, which he
characterizes as "unconscionable."
"It cannot be gainsaid that a defendant's decision to
enter a guilty plea is sometimes influenced by his assessment of
the prosecution's case." Ferrara v. United States, 456 F.3d 278,
291 (1st Cir. 2006). But that common motive for pleading guilty
"cannot form the basis for a finding of involuntariness," unless
"the defendant's misapprehension of the strength of the
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government's case results from some particularly pernicious form of
impermissible conduct." Id. The allegedly improper conduct that
the defendant attributes to the government here is primarily that
it brought a multi-defendant conspiracy prosecution. That alone,
of course, is not impermissible. While various courts, including
this one, have recognized the risks of such prosecutions--namely,
that the jury will find individual, presumptively innocent
defendants guilty by virtue of their association with their more
obviously culpable co-defendants--they have done so primarily in
the context of requiring that certain safeguards be imposed to
prevent such risks from being realized. See, e.g., Richardson v.
Marsh, 481 U.S. 200, 211 (1987) (holding that where a nontestifying
co-defendant's out-of-court confession does not facially
incriminate another defendant, it can be admitted in a joint trial
only with a limiting instruction and redacted to eliminate any
reference to the other defendant's existence); Bruton v. United
States, 391 U.S. 123, 135-36 (1968) (holding that where a
nontestifying co-defendant's out-of-court confession does facially
incriminate another defendant, it cannot be admitted in a joint
trial even with a limiting instruction); United States v. Ofray-
Campos, 534 F.3d 1, 24-31 (1st Cir.) (vacating defendants'
convictions where the court told the jury, without any limiting
instruction, that 37 co-defendants were in prison for participating
in the alleged conspiracy), cert. denied, 129 S. Ct. 588 (2008).
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Although the defendant claims that he should have been
made aware of those safeguards at his change-of-plea hearing, no
such detailed description was required. Rule 11 requires only that
the court inform the defendant of "his right at trial to confront
and cross-examine witnesses," Fed. R. Crim. P. 11(b)(1)(E), which
has been found to be satisfied where the court merely "touched on"
that right and the defendant expressed no confusion. United States
v. Moriarty, 429 F.3d 1012, 1020 n.5 (11th Cir. 2005). The
Constitution requires even less. Ward, 518 F.3d at 83 & n.13.
Here, the court not only mentioned those rights but explained them,
at some length, in layman's language. That explanation was more
than sufficient.
The defendant further objects to the court's use of the
words "anyone" or "someone" as being too narrow to include the
possibility that "it was the coercive circumstances--brought on by
the Government's tactics--that compelled [him] to accept the
oppressive terms in the plea agreement." However, even in a
potentially more coercive, package-plea situation, which was not
present here, the general inquiry as to whether "anyone" forced the
defendant to plead guilty has been held sufficient. United States
v. Mescual-Cruz, 387 F.3d 1, 9-10 (1st Cir. 2004); cf. United
States v. Martinez-Molina, 64 F.3d 719, 734 (1st Cir. 1995)
(finding inquiry as to whether the "prosecutor" forced a defendant
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to plead guilty insufficiently broad to cover the possibility that
he was coerced to do so by his co-defendants).
The final allegedly "coercive circumstance" that the
defendant points to is that, less than three weeks before the
scheduled trial date, the court summarily denied newly appointed
defense counsel's motion for a continuance of the trial.
Ordinarily, denial of a continuance of trial is within the broad
range of the district court's discretion, United States v. Mangual-
Santiago, 562 F.3d 411, 429-30 (1st Cir. 2009); but an unexplained
denial may be an abuse of that discretion, id. at 430-31.
Here, although the court initially gave no reasons for
denying the motion, it later explained that it had appointed this
particular attorney because he had experience in criminal
litigation and knowledge of criminal law in general and of this
case in particular (through his earlier, brief representation of
another defendant) and would therefore be able to "go through the
evidence in the case immediately, and make an accurate assessment
of where [the defendant's] case stood in terms of the complete
scenario of the case" and could do so "rapidly." Denying a
continuance in those circumstances was within the court's
discretion.
As to the unconscionability of the plea agreement, the
defendant alleges that the government refused to negotiate the
terms of the plea agreement with him and that the terms it offered
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were unreasonably favorable to the government. Those allegations
are unsupported by the record, which indicates that the parties
engaged in extensive, good-faith plea negotiations and that the
terms of the final agreement, far from being "unconscionable," were
highly favorable to the defendant in that, absent the agreement, he
was exposed to a mandatory minimum of ten rather than five years
and a maximum of a life sentence rather than the 156-month sentence
jointly recommended in the agreement, the best deal offered to any
similarly situated defendant. The plea agreement and the guilty
plea in general were therefore not so coercive as to be
involuntary.
The threshold issue as to the remainder of the
defendant's appellate arguments is the enforceability of his appeal
waiver; if it is enforceable, then we need not--and should not--
reach the other issues that the defendant raises on appeal. United
States v. Borrero-Acevedo, 533 F.3d 11, 18 (1st Cir.) ("[A]n
inquiry into the merits is exactly what a waiver of appeal blocks."
(internal quotation marks omitted)), cert. denied, 129 S. Ct. 587(2008). We will therefore address that issue next.
Presentence waivers of appeal are enforceable if the
waiver was "knowing" and "voluntary" and if enforcing it would not
result in a "miscarriage of justice." United States v. Teeter,
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257 F.3d 14, 24-25 (1st Cir. 2001).1 In determining whether the
waiver was knowing and voluntary, we evaluate whether the written
plea agreement "contains a clear statement elucidating the waiver
and delineating its scope" and whether the district court
"inquire[d] specifically at the change-of-plea hearing into any
waiver of appellate rights." Id. at 24; see also Fed. R. Crim. P.
11(b)(1)(N) (requiring such an inquiry).
Here, the defendant does not challenge the clarity of the
written waiver, which provided that if the court "accepts this Plea
Agreement and sentences [the defendant] according to its terms,
conditions and recommendations, [he] waives and surrenders his
right to appeal the judgment and sentence in this case." Nor could
he successfully mount such a challenge since we have repeatedly
upheld the clarity of nearly identically worded waivers. See,
e.g., González-Colón, 582 F.3d at 127; United States v. De-La-Cruz
Castro, 299 F.3d 5, 10 (1st Cir. 2002).
Rather, in arguing that the appeal waiver itself was
unknowing and involuntary, the defendant focuses on the alleged
insufficiency of the court's explanation of the waiver at the
1
Because the government does not invoke the plain-error
standard that would otherwise apply to an unpreserved challenge to
the enforceability of an appeal waiver, Borrero-Acevedo, 533 F.3d
at 13, we apply the Teeter standards without the plain-error
overlay. See United States v. Edelen, 539 F.3d 83, 85 n.1 (1st
Cir.), cert. denied, 129 S. Ct. 427 (2008); United States v.
Chandler, 534 F.3d 45, 49 n.3 (1st Cir. 2008).
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change-of-plea hearing and at sentencing. The record of those
hearings, however, reveals no such deficiencies.
At the change-of-plea hearing, the court specifically
brought the appeal waiver to the attention of the defendant and his
co-defendant, whose agreement apparently contained an identically
worded waiver. The court correctly explained the waiver, as
applied to each defendant's circumstances, as follows:
[I]f I sentence you Mr. Lara to 156
months and Mr. Aponte if I sentence
you to 108 months concurrent, then
you will accept that as the final
sentence. You will not be asking a
higher Court to review what I have
done or how I made the analysis of
the sentencing guidelines or what
w[ere] the factors that l[ed] to any
sentence, to that sentence that I
imposed. Which means this sentence
will be firm and final.
Id.The defendant argues that, by using the word
"concurrent," the court created confusion as to whether Lara's
recommended 60-month sentence on Count 7 would be concurrent with
or consecutive to his 96-month sentence on Count 1. However, since
the court specifically referred to a sentence of 156 months for
Lara, it was clear that the number 156 referred to the total
recommended sentence on both counts (96 plus 60), and that the word
"concurrent" applied only to co-defendant Aponte's recommended
sentence, which was previously described as concurrent with his
sentences on related federal and state offenses. Not only did Lara
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express no confusion with that explanation, any inference that he
was confused is precluded by the court's earlier repeated
explanations that the mandatory 60-month sentence on Count 7 would
be consecutive to the parties' recommended 96-month sentence on
Count 1 and by the defendant's own accurate explanation of the
meaning of "consecutive" in his own words.
The defendant goes on to argue that "[t]he waters were
further muddied" by the court's advice, at sentencing, that "were
[he] to appeal the judgment in this case [he had] ten days, [he
could] ask attorney Vega to file, [he could] do it pro se or [he
could] ask the Clerk of Court to file it on [his] behalf" and that
"[w]ere [he] to pursue an appeal, Mr. Vega could do it or any other
attorney from the Court[, and that,] [i]n addition[,] [he could]
ask for authorization to proceed in forma pauperis" (emphases
added). That conditional advice, however, was offered only "out of
an abundance of caution" and was immediately prefaced by the
following statement (omitted from the defendant's brief): "The
sentence [the court] imposed [w]as pursuant to the plea agreement
stipulated between the parties so that I take it that the waiver of
appeal is triggered and that waiver is totally enforceable."
Neither the defendant nor his attorney objected to or sought
clarification of that statement. In that context, nothing the
court said at sentencing "muddied" its previous clear explanation
of the appeal waiver at the change-of-plea hearing. Rather, in
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fulfilling its obligation under Rule 35(j)(1) to advise the
defendant of "any right to appeal," the court did precisely what we
prescribed in these circumstances, namely, to be "especially
careful in its choice of words, taking pains to explain to the
defendant that h[is] right to appeal [wa]s circumscribed by h[is]
preexisting waiver." Teeter, 257 F.3d at 25. The court's
comments, taken as a whole, thus fell far short of the "blanket
assurance about the right to appeal" that we have cautioned
against. Id. Therefore, the defendant's arguments that his waiver
of appeal was unknowing are unavailing.
The defendant further faults the district court for
failing to inquire separately as to the voluntariness of the appeal
waiver (in addition to asking whether "anyone forced [him] or
compelled [him] in any way2 to accept the terms and conditions" of
the plea agreement; whether "someone forced [him] in any way or
manner . . . to accept [the government's] version of facts"; and,
more generally, whether "someone in any way or fashion forced [him]
to make the decision of pleading guilty"). That claim for more
specificity fails.
"Although specific attention to the issue of
voluntariness in any plea proceeding is highly desirable, there is
2
The phrase "in any way" was misleadingly omitted from the
defendant's brief. That omission coupled with the one noted above
leads us to remind counsel of their responsibility of candor to the
court. See Model Rules of Prof'l Conduct R. 3.3; Amstar Corp. v.
Envirotech Corp., 730 F.2d 1476, 1486 (Fed. Cir. 1984).
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no specific script that must be followed." Ward, 518 F.3d at 86.
There is no requirement in Rule 11 or otherwise that the court
specifically ask whether a defendant's appeal waiver was voluntary;
Rule 11(b)(1)(N) requires only that the court determine whether a
defendant "understands" the terms of any such waiver, which was
done here. Although Rule 11 does require the court to "address the
defendant personally in open court and determine that the plea is
voluntary," Fed. R. Crim. P. 11(b)(2) (emphasis added), even that
general inquiry is not constitutionally mandated. Ward, 518 F.3d
at 82. Moreover, although not required to do so, the court here
did ask the defendant whether "anyone forced or compelled [him] in
any way to accept the terms and conditions of this contract that
[he had] made with the government," and that question immediately
followed the discussion of the appeal waiver.
Because the first two Teeter factors are thus satisfied,
the only remaining potential barrier to enforcing the appeal waiver
is if doing so would "work a miscarriage of justice." Teeter, 257
F.3d at 25. But the defendant's opening brief is virtually silent
on that point; the only allusions to that standard are in a
parenthetical following a case citation and in a footnote. His
reply brief cites the exception but develops no argument as to how
it applies here. By not directly making a miscarriage-of-justice
argument in his opening brief and belatedly mentioning but not
developing it in his reply brief, the defendant arguably waived the
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application of that exception. United States v. Hall, 557 F.3d 15,
20 n.3 (1st Cir.), cert. denied, 129 S. Ct. 2849 (2009); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Nevertheless, applying the relevant factors, including
"'the clarity of the alleged error[s], [their] character and
gravity, [their] impact on the defendant, any possible prejudice to
the government, and the extent to which the defendant acquiesced in
the result,'" United States v. González-Colón, 582 F.3d 124, 129
(1st Cir. 2009) (quoting United States v. Gil-Quezada, 445 F.3d 33,
37 (1st Cir. 2006)), we have considered whether foreclosure of
either of the remaining arguments raised on appeal3 would be so
unjust as to satisfy the appropriately demanding miscarriage-of-
justice standard, and we have concluded that no such injustice
would result.
In sum, the defendant's guilty plea and plea agreement
were valid, his appeal waiver was knowing and voluntary, and
enforcing the waiver to preclude his remaining arguments on appeal
would not work a miscarriage of justice. Accordingly, the district
court's judgment is affirmed.4 See 1st Cir. R. 27.0(c).
3
Those arguments are that the court erred in imposing a
leadership enhancement and that 18 U.S.C. § 924(c) violates the
Second Amendment.
4
The panel has unanimously concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a)(2); 1st Cir. R. 34.0(b).
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