
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2182                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    CAMILLE BELLE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Chris H. Mangos for appellant.            _______________            Camille Belle on supplemental brief pro se.            _____________                       ___ __            Geoffrey E.  Hobart, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   JANUARY 24, 1997                                 ____________________                      ALDRICH, Senior Circuit Judge.   The record in this                               ____________________            case   calls  for  our  writing  something  of  a  primer  on            acceptance-of-plea hearings.  First, the background.  Camille            Belle  (Belle),  together  with  her husband  and  son,  were            arrested  on a  criminal complaint  in February  1994.   By a            superseding indictment  in June  1994 she was  charged, inter                                                                    _____            alia, with  various drug offenses, including  conspiracy from            ____            1987 to the date of arrest.  In January 1995 she retained new            counsel,  and her (separate) trial  date was set  for May 22.            On the morning of that day Belle told the court she wished to            plead.  A plea agreement was drawn, and, after a hearing, her            plea  to  six  of the  eight  counts  of  the indictment  was            accepted.                      On September 7, 1995 a Presentence Report (PSR) was            released, with objections due by September 21.   On September            19, supported by a one page affidavit of counsel, Belle moved            for  leave  to  vacate  her   plea,  and  for  a   competency            evaluation.   These  motions were  denied the  following day.            Thereafter she filed  objections to  the PSR.   A  sentencing            hearing was  held  on September  28.   After, in  a two  hour            address,  Belle had informed the court of her views as to how            the  agents  had  treated  her  during  the  "reverse  sting"            operations that had led to  her indictment, she was sentenced            to a minimum-mandatory term of ten years.  She appeals.                                         -2-                      Belle's primary complaint is  that her Rule 11 plea            hearing was  inadequate.  Of present  relevance the following            occurred (numerals ours).                      THE COURT:      [1]   Are  you  presently  under  a                                      doctor's care?                      BELLE:          Yes, your Honor.                      THE COURT:      [2]  What did she say?                      THE CLERK:      Yes, your Honor.                      THE COURT:      [3]  Does  the illness that  you're                                      being   treated  for   affect  your                                      ability to understand the nature of                                      these proceedings?                      BELLE:          No.                      THE COURT:      [4]  Have you taken any medicine or                                      pills or drugs today?                      BELLE:          Yes, your Honor.                      THE COURT:      [5]   Is the  ingestion  of any  of                                      those items, medicines or  pills or                                      drugs, does it affect  your ability                                      to understand the  nature of  these                                      proceedings?                      BELLE:          No.                      THE COURT:      [6]    Have  you  ever  been  under                                      psychiatric care?                      BELLE:          No, your Honor.                      THE COURT:      [7]    Counsel,  do  you  know  any                                      reason  why  the  Court should  not                                      accept the plea of guilty?                      MR. BALLIRO:    I do not, your Honor.                      THE COURT:      [8]   Have you had  sufficient time                                      to discuss this  matter fully  with                                      your attorney?                                         -3-                      BELLE:          Yes.                      THE COURT:      [9]   Are  you satisfied  with  his                                      representation of you?                      BELLE:          Yes.            After this exchange, the court found that "the plea of guilty            has been  knowledgeably offered with an  understanding of its            possible consequences."                      In United  States v.  Parra-Ibanez,  936 F.2d  588,                         ______________     ____________            594-95   (1st  Cir.   1991),  after   recognizing   that  the            voluntariness  of the plea is  a core requirement  of Fed. R.            Crim.  P. 11, we quoted  with approval from  United States v.                                                         _____________            Cole, 813 F.2d 43, 46 (3d Cir. 1987) that once the court "has            ____            been informed that the  defendant has recently ingested drugs            or other  substances capable of impairing his ability to make            a  knowing  and  intelligent  waiver  of  his  constitutional            rights,"  this subject  must be  pursued.   We  repeated this            admonishment in  Carey v. United  States, 50 F.2d  1097, 1099                             _____    ______________            (1st Cir.  1995).  Even without these  authorities this would            seem manifest.                      We  cannot understand how,  having been informed by            the affirmative  answer to  question 4,  that Belle may  have            just ingested  drugs,  the court  would  not have  asked  the            obvious.  Her opinion, 5, and  that of her counsel, 7, to the            effect that some, unidentified,  substance had not interfered            with her mental abilities,  was, at best, secondary evidence.            It  is not  to be  forgotten that  defendant and  counsel are                                         -4-            concerned parties who  want the plea  accepted.  Their  views            are important, and  we certainly do not, at  least initially,            (see post),  question the  good faith  or general  ability of                 ____            counsel,  but  the purpose  of a  plea  hearing is  to obtain            impartial findings  upon available basic  facts.  We  are not            persuaded by a discomforted  government's argument that these            opinions  excused  the  court  "from  engaging  Belle  in  an            extended colloquy  about her various ailments."   Rather, the            court's inquiry was conspicuously deficient.                      This  conclusion  may  not  of  itself  warrant the            withdrawal of  the plea.  Apart  from the red flag  answer to            question 4 the record as a whole  fully warranted the court's            conclusion that the plea was voluntary.  Can we then conclude            from  the  record as  a whole  that  this error  was harmless            (e.g., the PSR)?  See Carey, 50 F.3d at 1099.  Here, however,                              ___ _____            we  run  into a  singular  situation.   According  to Belle's            counsel, on May 22 when her plea  was accepted (and after his            being with her for  some time), there  was no reason why  her            plea should not  be accepted.   (Question 7).   According  to            this same counsel,  by his September affidavit in  support of            her motion to withdraw her plea, on May 22 she was "confused,            disoriented and lacking in comprehension as to the effect  of            her agreement to plead guilty."                      While this affidavit may raise serious questions as            to  counsel,  it  surely   weakens  the  reliability  of  his                                         -5-            statement to the court as to defendant's state of mind on May            22.    This, together  with the  court's  failure to  ask the            obvious question  after 4, prevents us  from determining that            the Rule 11 error was harmless.                      As  we did  in Parra-Ibanez,  936 F.2d  at 598,  we                                     ____________            remand to the district court for an evidentiary  hearing, its            findings and recommendations  to be forwarded to the clerk of            this court.    This hearing  should include  findings on  the            companion matters sought to  be raised before us, ante.   Our                                                              ____            jurisdiction to continue.                                         -6-
