
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1842                                    UNITED STATES,                                 Plaintiff, Appellee,                                          v.                                CARMEN RUIZ-DEL VALLE,                                  A/K/A MARIA SOTO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                          _____________                                 ____________________            Lydia Lizarribar-Masini for appellant.            _______________________            Miguel  A. Pereira,  Assistant United  States Attorney,  with whom            __________________        Charles E.  Fitzwilliam, United  States Attorney  and Jose  A. Quiles-        _______________________                               ________________        Espinosa, Senior Litigation Counsel, were on brief for appellee.         ________                                 ____________________                                   November 3, 1993                                 ____________________                      BOWNES, Senior  Circuit Judge.   After  executing a                      BOWNES, Senior  Circuit Judge.                              _____________________            plea agreement,  defendant-appellant, Carmen  Ruiz del  Valle            (Ruiz), pled guilty to counts  two, five and six of a  super-            seding indictment on  January 22, 1992.  Counts  two and five            charged  that defendant, along  with her common  law husband,            Arturo Reyes Diaz  (Reyes), and Orlando Col n  Santiago, with            aiding  and abetting  each other,  and  with possessing  with            intent  to distribute  5,152  and 3,566  grams  of heroin  in            violation of 21 U.S.C.   841(a)(1) and  18 U.S.C.   2.  Count            six charged that  defendant and Reyes used and  carried fire-            arms during  and in relation  to a drug trafficking  crime in            violation of  18 U.S.C.    924(c)(1).   This count  carries a            minimum mandatory sentence of five years.                      There  are two issues:  whether defendant should be            allowed to withdraw  her guilty plea  to the firearms  charge            (count six); and whether the district court erred in sentenc-            ing defendant on the other two counts by adding two points to            her base offense level  because she played a  leadership role            in the offense.                                      THE FACTS                                      THE FACTS                                      _________                      In  order to understand  the first issue  the facts            must be related in  detail.  In the late afternoon  of August            25, 1991, a suitcase arrived at the International  Airport in            San  Juan.   It had  been delivered  by an  American Airlines            flight from the Dominican Republic.  Because the suitcase had                                         -2-                                          2            arrived from a foreign country,  it was deposited in the U.S.            Customs area for inspection.                      The  inspecting  Customs  Officer  noted  that  the            suitcase left Kennedy  Airport in New York City  on August 23            destined  for San  Juan.   By  mistake the  suitcase was  not            unloaded at  San Juan  and was taken  to the  carrier's final            destination,  the Dominican Republic.   The suitcase  was re-            turned to San Juan,  its original destination, on August  25.            The suitcase had an American Airlines claim tag with the name            of Maria Soto,  and there was a passenger  identification tag            bearing the  same name.   Because the  suitcase had  a strong            chemical  odor, the  Customs Inspector  opened  it and  found            seven  packages that field-tested  positive for heroin.   The            total amount of heroin weighed 5,152.1 grams.   Special Agent            Rodolfo Salcedo of the Customs Service was notified.                      Agent Salcedo immediately  tried to find the  owner            of the  suitcase.   He ascertained  that  an airport  baggage            handler,  Wilfredo Ortiz, had tried to retrieve the suitcase,            but was  told that  only the owner  could do  so.   Ortiz was            interviewed by  Agent Salcedo and  DEA agents.  He  gave them            essentially  the following information.  On August 25, defen-            dant, accompanied by Reyes and a small child, went to Ortiz's            home.  Defendant identified Reyes as her husband.   Defendant            told  Ortiz that an American  Airlines employee, whom she had            phoned, told her that the  suitcase had arrived.  She offered                                         -3-                                          3            Ortiz $15,000 if he helped her retrieve the suitcase from the            Customs area.   Defendant  then drove  Ortiz to  the airport,            gave him five dollars, and  told him that after obtaining the            suitcase  he was to take a taxi to the Laguna Gardens parking            lot where she and Reyes would be waiting for him.  As already            noted, Ortiz was unable to obtain the suitcase.                      Defendant  drove  Ortiz   back  to  his  residence.            During the  drive defendant asked Ortiz when his next working            day was.  Ortiz  told her it was Tuesday, August  27.  Defen-            dant told  Ortiz that  she would look  for him on  that date.            Also, during  the drive  back to  Ortiz's home,  Reyes stated            that  the  suitcase  contained "seven  big  eggs"  wrapped in            plastic containing drugs.     In  a subsequent  conversation,            presumably by telephone, Ortiz told defendant that he knew an            American Airlines  employee who  could retrieve  the suitcase            for a fee.  Defendant said  that she would pay Ortiz $15,000,            and the American Airlines employee $10,000.  Ortiz then asked            defendant what was in the suitcase, and defendant told him it            contained heroin.                      On August 28, DEA Agent  Victor Ayala, acting as an            undercover agent, was telephonically  introduced to defendant            as  the American  Airlines employee  who  could retrieve  the            suitcase.  During the recorded telephone conversation, defen-            dant agreed to pay Ayala $10,000 for delivering the suitcase.            Ayala  inquired about the  contents of  the suitcase  and was                                         -4-                                          4            told that it contained heroin.  Defendant and Ayala agreed to            meet at the San Juan Airport  so she could give him her  bag-            gage claim ticket.                      In  the early afternoon of August 28, defendant and            Reyes came to the airport.   Agent Ayala, who was accompanied            by  Ortiz, was  given a  baggage claim  ticket with  the name            "Soto/ Maria."   Defendant told Ayala not to  worry about his            money, that  it was  secure.  Ayala  told defendant  that she            would be  called as soon as he  obtained the suitcase.  About            three hours later Ayala called defendant and told her that he            had the suitcase.  This  telephone call was recorded.  Defen-            dant talked to Ortiz and told him that her husband and anoth-            er person would  pick up the suitcase and  deliver the money.            Defendant also talked  to Ayala and told him that if he was a            cop, she would chop his head off.                      About two and a half hours later  there was another            recorded telephone  call between Ayala and defendant.  At the            start of the  phone call defendant told Ayala  that the money            man had  just arrived and to call back  in two minutes.  This            was done, and  the second phone  call was duly recorded.   It            was  agreed that  defendant would pay  Ayala the  $10,000 and            pick  up  the suitcase  the next  day about  10:30 a.m.   The            exchange of money for the suitcase was to take place in front            of Wendy's Restaurant at the airport.                                         -5-                                          5                      The  next day, at  about 10:45 a.m.,  the other two            defendants named in  the indictment, Reyes and  Col n, pulled            up and  parked  in front  of Wendy's  as agreed.   Reyes  was            driving.  Col n got out of the car and gave Agent Ayala a bag            in which there was a  twelve-can container of Pepsi Cola with            six cans  of Pepsi and  $10,000 in  cash.   Col n told  Agent            Ayala to put the suitcase on the back seat of the car.  After            this was  done, Col n was arrested.   Reyes tried to  flee by            driving away.  After a three minute chase, he was stopped and            arrested.    During  his attempted  flight,  Reyes  threw the            suitcase out of the window of the car.                      The next  day, August 29, at about  7:35 p.m., Cus-            toms and  DEA agents,  acting pursuant  to a  duly authorized            warrant,  searched the condominium apartment held in the name            of defendant and jointly  occupied by her and Reyes.   No one            was in the apartment at the time of the search.  Found in the            apartment and  seized were  3,566 grams  of heroin,  assorted            drug paraphernalia,  including scales and  three weapons with            the ammunition necessary for their  use.  The firearms were a            twelve-gauge  shotgun, altered to make it a hand-held weapon,            a Winchester rifle, model 94, and a pistol.                                  PROCEDURAL HISTORY                                  PROCEDURAL HISTORY                                  __________________                      As already noted,  defendant pled  guilty on  Janu-            ary 22, 1992.  She  was sentenced on June 15, 1992, and filed            a notice of appeal from the sentencing on June 19.                                         -6-                                          6                      Unlike  defendant Ruiz,  her husband,  Reyes, opted            for a  bench trial.   For reasons that will  become apparent,            the record of that trial is part  of the record in this case.            Reyes was tried on August 20, 1992, on counts one, two, five,            six, seven,  and eight.   Count one  charged conspiracy  with            intent to  distribute multi-kilo quantities of heroin; counts            two and five charged possession with intent to distribute the            same multi-kilo  amounts of heroin.   Counts six,  seven, and            eight were firearms counts charging violations of 18 U.S.C.              924(c)(1).  These counts carried minimum  mandatory sentences            of five years.                      Reyes did not plead guilty to counts one, two,  and            five, but  neither did he  contest them.  His  entire defense            was  concentrated on  the firearms  counts.   On this  he was            successful.    The  same district  court  judge  who accepted            defendant's guilty pleas presided at  the bench trial of  her            husband.  Because  it is important to our  resolution of this            case we quote the  pertinent portion of the  district court's            rulings and findings in the case against Reyes:                             It  is clear  from  the cases  which                      have just been summarized that the objec-                      tive  of  924(c)(1) is  to  penalize drug                      transactions which could  easily escalate                      into violence.  Such is not the situation                      at hand.  It  may be true that  the fire-                      arms were  located at  the apartment  for                      the purpose of protecting a drug business                      which  was  admittedly conducted  in  the                      apartment, but the mere presence of fire-                      arms is not  sufficient for a conviction,                      for  there must  be a  nexus between  the                                         -7-                                          7                      firearm and the facilitation of the tran-                      saction at issue.                           The  defendant  did not  arrange  to                      meet the undercover  agent at the  apart-                      ment;  they met at  the airport.   At the                      time  of  the  search the  apartment  was                      vacant  and  no drug  business  was being                      conducted.                           There  are  other  firearm  statutes                      whose purpose is to deter the  possession                      of  firearms without  a permit.   Section                      924(c)(1) was not  drafted for that  pur-                      pose.                           Even though  the defendant  has also                      been charged  with a  conspiracy to  dis-                      tribute a controlled substance, the exis-                      tence of such a  conspiracy is not suffi-                      cient to support a conviction for a fire-                      arm  which was not  proven to be  part of                      the  commission  of the  felony.   United                                                         ______                      States  v. Pietri,  683  F.2d 877,  Fifth                      _________________                      Circuit  1982  (sufficient   evidence  to                      support  convictions  where  conspirators                      met with  undercover agent  with revolver                      concealed in pant leg).                           Wherefore, in view of the foregoing,                      the  Court  hereby  finds that  there  is                      insufficient evidence for  convictions as                      to Counts Six, Seven and Eight, which are                      the firearms counts.            United  States v. Reyes Diaz, 797 F.  Supp. 96, 97 (D. Puerto            ______________    __________            Rico 1992).                      On October  9, 1992,  defendant Ruiz  moved in  the            district court to withdraw her  guilty plea on count six, the            firearms charge.   The  district court  quite properly  ruled            that it lacked jurisdiction to entertain such a motion.  Fed.            R. Crim. P.  32(d) provides, that, after  sentencing, "a plea            may be set aside only on direct  appeal or by motion under 28                                         -8-                                          8            U.S.C.    2255."  Because  in her notice of  appeal defendant            Ruiz questioned the evidentiary basis  for her plea of guilty            to the  firearms count, the  issue whether she should  be al-            lowed to withdraw  her guilty plea to that  count is properly            before us, as the government concedes.1                                       ANALYSIS                                       ANALYSIS                                       ________                      We start with the Rule  11 plea hearing.   Although            defendant has not directly  attacked the manner in which  the            plea hearing was conducted, an examination  of the plea hear-            ing is logically  the first step in the review process.  This            is so even  if a claim of non-compliance with Rule 11 was not            presented to the trial court.  United States v. Parra-Ibanez,                                           _____________    ____________            936  F.2d 588,  593 (1st  Cir. 1991).   In  United  States v.                                                        ______________            Padin-Torres,  988 F.2d 280 (1st Cir.  1993) we noted, citing            ____________            to Parra-Ibanez:  "Rule 11  objections, so far as they affect               ____________            the  'knowing' character of  the plea are  treated with extra            solicitude."  See  also United States v. Mateo,  950 F.2d 44,                          ___  ____ _____________    _____            45 (1st Cir. 1991) (a  Rule 11 challenge will not  be consid-            ered waived  since Rule  11 protects not  only rights  of the            defendant  but also  the "'fairness,  integrity  [and] public            reputation  of judicial proceedings.'").  In United States v.                                                         _____________            Daniels,  821 F.2d  76, 81  (1st Cir.  1987), we  noted that,            _______                                            ____________________            1.  The government's statement of issue one is:                 I.   Whether  Appellant's Request  to Withdraw  Her                      Voluntary Plea of  Guilty to Count Six  of the                      Superseding Indictment Should be Granted.                                         -9-                                          9            because the  "fairness, integrity [and] public  reputation of            judicial proceedings"  is at  stake in  Rule 11  proceedings,            appellate courts have sometimes considered Rule 11 violations            sua sponte.            ___ ______                      There  are  certain basic  duties  that a  district            court must  fulfill in conducting  a Rule 11 hearing.   Under            the Rule, the court must address the defendant personally and            determine  that the defendant  understands the nature  of the            charges to  which the  plea  is offered.   Fed.  R. Crim.  P.            11(c)(1).   The Supreme  Court in commenting  on the require-            ments of Rule 11 has stated:                           Thus, in  addition to  directing the                      judge  to  inquire into  the  defendant's                      understanding of the nature of the charge                      and the consequences of his plea, Rule 11                      also requires  the judge to  satisfy him-                      self that  there is a  factual basis  for                      the plea.  The judge must determine "that                      the  conduct which  the defendant  admits                      constitutes  the offense  charged in  the                      indictment or  information or  an offense                      included therein  to which  the defendant                      has  pleaded  guilty."    Requiring  this                      examination of  the relation  between the                      law  and the  acts  the defendant  admits                      having committed is  designed to "protect                      a  defendant  who is  in the  position of                      pleading voluntarily with  an understand-                      ing of the nature of the charge but with-                      out realizing that  his conduct does  not                      actually fall within the charge."            McCarthy v. United States, 394 U.S.  459, 467 (1969) (quoting            ________    _____________            Fed. R. Crim. P. 11, advisory committee's note).                      Our  cases stress that the district court must make            sure that the plea is voluntary and that the defendant under-                                         -10-                                          10            stands the  charges against her.   In Mack v.  United States,                                                  ____     _____________            635  F.2d 20, 25 (1st Cir. 1980),  we stated:  "Insuring that            the plea is truly voluntary means that the court must resolve                        _____            all doubts and questions arising  about the guilty plea."  It            is axiomatic  that the  procedures followed  by the  district            court in accepting  a plea are  crucial in later  determining            whether  the  plea  was truly  understanding  and  voluntary.            United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir. 1983).            _____________    ________            In United  States v.  Allard, 926 F.2d  1237, 1245  (1st Cir.               ______________     ______            1991), we pointed out:  "The plain language of the rule [Fed.            R.  Crim. P.  11(c)] requires  the court  both to  inform the            defendant of the  nature of the charge and  make a determina-            tion that he understands it."  In reviewing  the record  of a            change  of plea hearing,  we bear  in mind  that there  is no            "talismanic  test" for  determining compliance  with the  re-            quirements of the  rule.  "We must look  at the circumstances            of the  case to determine whether the district court informed            the defendant of the charges, and  determined that the defen-            dant understood them."   United States v. Zorrilla,  982 F.2d                                     _____________    ________            28, 30 (1st Cir. 1992), cert. denied, 113 S. Ct. 1665 (1993).                                    _____ ______                      We find the change of  plea hearing as to the fire-            arms count, which is the only one at issue, defective for two            reasons.   First, the charge  was not read to  defendant, nor            was it explained to  her by the court.  It  is true that both            defendant and her attorney assured the court  that she under-                                         -11-                                          11            stood all  of the  charges against her.   But  this does  not            excuse  the judge from  personally explaining the  charges to            the defendant  and then questioning  her to be sure  that she            understands them.  This was especially so here because in its            outline  of the evidence the government  alluded only once to            the firearms count.  The prosecutor stated:  "Subsequently, a            search of the  defendant Ruiz Del Valle's  apartment produced            three weapons  and additional heroin  in the amount  of 3,566            grams."  This  is hardly sufficient  to explain the  firearms            count.                      The second reason we think the plea hearing violat-            ed Rule 11 was  that the court was, or should  have been, put            on notice by a statement by the defendant that she either did            not understand the firearms charge or felt that  the presence            of a weapon in her apartment was  not a crime.  The statement            made by defendant  was:  "I knew  that there was a  weapon in            the room, but  I did not  buy that weapon  and I did  not use            it."  Beyond ascertaining  that the word "room"  meant defen-            dant's apartment, no  further inquiry was made.   The court's            failure to inquire of defendant  and the prosecutor about the            firearms  charge was of special significance here because the            court later decided  on facts that were  identical that there            was  insufficient  evidence  for  conviction  of  defendant's            husband on the  firearms charges.   In fact, the  defendant's            statement that she did not  buy the weapon or use it,  should                                         -12-                                          12            have,  under the  court's rationale  in  the husband's  case,            prompted the  court to refuse  to accept defendant's  plea on            the firearms count.                      We wish to make it clear that we are not passing on            the  legal or  factual correctness  of  the district  court's            opinion.  For purposes of this appeal we consider the opinion            only because it reflects the understanding of the judge as to            whether the evidence was  sufficient for a conviction on  the            firearms count.  He found that it was not.  His understanding            of the  requirements of 18  U.S.C.   924(c)(1) was  that "the            mere presence of firearms is not sufficient for a conviction,            for  there  must be  a  nexus  between  the firearm  and  the            facilitation of  the transaction at  issue."  The  court also            found  it material  that "[A]t  the  time of  the search  the            apartment was vacant  and no drug business was being conduct-            ed."  Finally, the court held:                        Even though  the defendant has  also been                      charged with a conspiracy to distribute a                      controlled  substance,  the  existence of                      such a  conspiracy is  not sufficient  to                      support a conviction  for a firearm which                      was  not proven to be part of the commis-                      sion of the felony.                      Our  review of the  record in defendant's  case and            the trial transcript in her  husband's case convinces us that            as far  as the firearms  counts are concerned  both defendant            and  her husband stood on equal footing.   Both of them occu-            pied the  condominium apartment,  although it  was in  defen-                                         -13-                                          13            dant's  name.   There was  no  evidence as  to who  owned the            weapons found in the apartment.  Reyes did not testify at his            bench trial.  We emphasize that the judge who accepted defen-            dant's  guilty pleas  was the  same one  who later  found her            husband  not guilty  on the  firearms  counts.   We can  only            conclude that if defendant had  gone to trial, as her husband            did, that she would also have been found not guilty.                      The  question for the  appellate court on  a direct            appeal of a  post-sentence request for  a plea withdrawal  is            whether  there has  been a  miscarriage  of justice.   United                                                                   ______            States v. Allard, 926 F.2d at  1243.  Or to put another  cast            ______    ______            on it, was there "an omission inconsistent with the  rudimen-            tary demands of fair procedure"?   United States v. Japa, 994                                               _____________    ____            F.2d 899,  904  (1st Cir.  1993).   See also  Hill v.  United                                                ___ ____  ____     ______            States, 368 U.S. 424, 428 (1962).            ______                      We  conclude  that defendant  should be  allowed to            withdraw her  plea for two  reasons:  the court's  failure to            follow the requirements  of Rule 11  violated the demands  of            fair procedure;  and  the  court's  subsequent  findings  and            rulings in  the husband's  case makes  the imposition  of the            minimum mandatory  sentence of  five years  for the  firearms            count a miscarriage of justice in defendant's case.                 This holding is based on  the unique facts of this case.            We  are  not suggesting  that  where one  defendant  has pled            guilty and the  other defendant goes to trial  and is acquit-                                         -14-                                          14            ted,  that the pleading defendant has a basis for withdrawing            her plea.  In  this case, there probably  would have been  no            motion by defendant to withdraw her plea were  it not for the            district  court's decision  on the  firearms  charges in  her            husband's  case.  The reason, however, for allowing defendant            to  withdraw her  plea was  not the  court's decision  in her            husband's case; the  reason was the district  court's failure            to  follow the  mandate of  Rule 11 in  accepting defendant's            plea to the firearms count.                      We  must warn defendant,  as we did  her counsel at            oral argument, that the withdrawal  of her guilty plea on the            firearms count is not a guarantee of acquittal on that count.            All  that defendant  is entitled  to is  a new  trial  on the            firearms count.   New facts  may emerge  and different  legal            rulings may be made.  We specifically point out that under 18            U.S.C.   924(c)(1) if the firearm is a "short-barreled rifle"            or a "short-barreled shotgun," the minimum mandatory sentence            is ten years.   We do not  know whether the rifle  or shotgun            found  in defendant's apartment fall within this category and            only bring this to defendant's attention.                            LEADERSHIP ROLE DETERMINATION                            LEADERSHIP ROLE DETERMINATION                            _____________________________                      The  other  issue  is a  challenge  to  the court's            finding that defendant played a leadership role in the thwar-            ted attempt to  possess and distribute heroin.  Because "role            in the  offense" determinations are  fact-bound, the standard                                         -15-                                          15            of review is clear error.  United States v. Rodriguez Alvara-                                       _____________    _________________            do,  985  F.2d 15,  19  (1st  Cir.  1993); United  States  v.            __                                         ______________            Schultz, 970 F.2d 960, 963-64 (1st Cir. 1992), cert.  denied,            _______                                        _____  ______            113 S.  Ct. 1020  (1993); United States  v. Sostre,  967 F.2d                                      _____________     ______            728, 732  (1st Cir. 1992).   We find that the  district court            did not commit clear error  in finding that defendant was the            leader in the scheme.  The evidence from which such a finding            could be  made can be  summarized as follows:   defendant was            the one  who contacted  Ortiz in an  attempt to  retrieve the            suitcase; the suitcase claim ticket  was in the name of Maria            Soto, an obvious alias; defendant  was the one who offered to            pay Ortiz  $15,000 for retrieving the suitcase  from the Cus-            toms  area; and  defendant was  the one  who negotiated  with            undercover Agent Ayala about recovering the suitcase.                      The leadership  role finding of the  district court            and the upwards adjustment to the base offense is affirmed.                                      CONCLUSION                                      CONCLUSION                                      __________                      1.  Defendant may  withdraw her guilty plea  on the            firearms count.                      2.   The  sentence  of the  defendant  on the  drug            counts is affirmed.                                         -16-                                          16
