
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1880                                    UNITED STATES,                                      Appellee,                                          v.                              SALVADOR RIBAS-DOMINICCI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Pamela A.  Wilk, with whom Peter  Goldberger, Alan  Ellis, and Law            _______________            _________________  ___________      ___        Offices of Alan Ellis, P.C. were on brief for appellant.        ___________________________            Miguel A.  Pereira, Assistant  United States  Attorney, with  whom            __________________        Guillermo Gil,  United States  Attorney, and Jose  A. Quiles-Espinosa,        _____________                                ________________________        Senior Litigation Counsel, were on brief for appellee.                                 ____________________                                    March 24, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Salvador Ribas-Dominici  appeals the denial of  his motion to            withdraw  his plea of guilty.  Ribas, a lawyer, engineer, and            self-styled  military procurement expert, was indicted in the            District Court  of Puerto  Rico on  five counts  of stealing,            converting,  and selling  property  of the  United States  in            violation  of 18  U.S.C.    641.1    We first  summarize  the            essential facts.                                          I.                                          I.                      In  1987 the  United  States Department  of Defense            awarded  a  contract   to  Quality  Manufacturing,   Inc.,  a            corporation   owned  and   controlled  by   Ribas,   for  the            manufacture  of 1,692,120  pairs of  military trousers.   The            contract price  was $24,197,316.   Under the  contract terms,            the  government  made   fourteen  progress  payments  between            October,  1987  and  October,  1990  totalling  approximately            $9,600,000.   The indictment  alleges that the  United States            received  from Ribas'  corporation  - "Quality"  - goods  and                                            ____________________            1.  18 U.S.C.   641 sets forth criminal sanctions for:                         Whoever  embezzles,  steals, purloins,                      or knowingly  converts to his  use or the                      use  of  another,  or without  authority,                      sells, conveys or disposes of any record,                      voucher, money, or thing of  value of the                      United States  or  of any  department  or                      agency thereof, or  any property made  or                      being made under  contract for the United                      States  or  any   department  or   agency                      thereof; . . .                                         -2-                                          2            services     amounting    to     approximately    $9,200,000.            (Introductory allegation  8.)   The  indictment alleges  that            "title  or ownership"  of  the items  manufactured under  the            contract  passed to  the United States  not later  than final            inspection   and   approval    by   government    inspectors.            (Introductory  allegation 9.)    The district  court, in  its            opinion  rejecting the  plea-withdrawal  motion,  found  that            "[t]itle to  the  trousers passed  to  the United  States  on            August 28 and  September 4, 1991."  The government claimed to            have  evidence   that  would   prove  that  Ribas   had  been            specifically  instructed  not  to   dispose  of  any  of  the            trousers.                      Count One of the  indictment charges that Ribas did            willfully and knowingly  steal, convert, and sell  to a third            party   16,135   pairs   of  trousers   worth   approximately            $227,000.00, which were  the goods and property of the United            States.  Count  Two alleges  the same  as to  4,200 pairs  of            trousers  worth approximately  $59,000.  Count  Three charges            the same as to  10,019 pairs of trousers  worth approximately            $141,000.  Count Four alleges the same crime  as to 600 pairs            of  trousers with  a value  of approximately  $8,000.   Count            Five, the final count, charged the  theft and sale to a third            party of 336 pairs of trousers worth approximately $4,500.                      On the morning that trial was scheduled to commence            Ribas  signed a plea agreement and pled guilty to Counts Four                                         -3-                                          3            and Five of  the indictment.   The  government dismissed  the            first  three  counts.    Ribas  was  represented  by  counsel            throughout  the  plea bargaining  process,  and  the Rule  11            proceedings.  Two weeks after the plea and before sentencing,            Ribas' original  counsel moved to withdraw  his appearance on            the ground that Ribas had retained new counsel.  At about the            same time,  the new  counsel informed  the prosecutor that  a            motion to withdraw the  guilty plea would be filed.  This was            done less than a month after the plea.  A two-day hearing was            held  on  the  withdrawal motion,  which  was  denied by  the            district court in  a thirty-five page memorandum order.   For            the reasons  that follow, we  reverse the district  court and            remand for trial.                                         II.                                         II.                      Because defendant's  motion for withdrawal  of plea            was  made  before sentencing,  Fed.  R.  Crim.  P.  32(d)  is            implicated.  It provides:                         If a motion  for withdrawal of  a plea                      of  guilty  or  nolo  contendere  is made                      before sentence is imposed, the court may                      permit  withdrawal  of  the plea  upon  a                      showing by the defendant  of any fair and                      just reason.   At any later  time, a plea                      may be set aside only on direct appeal or                      by motion under 28 U.S.C.   2255.                      This  circuit   has  built  a  formidable  body  of            precedent covering the withdrawal of a guilty plea.  We start            with a  rule that is  so obvious,  it may be  overlooked:   a                                         -4-                                          4            defendant has no  absolute right to  withdraw a guilty  plea.            United States v. Tilley, 964 F.2d 55, 72 (1st Cir. 1992).            _____________    ______                      In a very recent case,  United States v. Jose Ramon                                              _____________    __________            Cotal-Crespo,  No.  94-1354  (1st  Cir. Jan.  30,  1995),  we            ____________            reiterated the principles that govern  the issue of whether a            guilty plea may  be withdrawn.   We stated  the factors  that            should be considered  in determining whether there is "a fair            and  just  reason"  for  withdrawing  the  plea.    The  most            significant is, "whether the  plea was knowing, voluntary and            intelligent within the meaning of Rule 11."  Id., slip op. at                                                         ___            5.    Other  factors to  be  considered  are  "the force  and            plausibility  of  the proffered  reason;  the  timing of  the            request;  whether  the  defendant   has  asserted  his  legal            innocence;  and  whether  the  parties  had  reached  a  plea            agreement."  Id.                           ___                      In discussing Rule 11 we said:                         By entering a guilty plea, a defendant                      effectively waives several constitutional                      rights.  For that waiver to be valid, due                      process requires that the plea  amount to                      a     voluntary     and      "intentional                      relinquishment or abandonment of  a known                      right or privilege."  McCarthy  v. United                                            ________     ______                      States,  394 U.S.  459,  466, 89  S.  Ct.                      ______                      1166,  22  L.Ed.2d  418  (1969)  (quoting                      Johnson  v. Zerbst, 304 U.S. 458, 464, 58                      _______     ______                      S. Ct. 1019, 82 L.Ed.2d 1461 (1938)).            Id.   We pointed out that  technical violations of Rule 11 do            ___            not  count, but  that a violation  of one of  the Rule's core            concerns  mandates  that  the plea  be  set  aside.   And  we                                         -5-                                          5            specified three core concerns:   "1) absence of  coercion; 2)            understanding  of  the  charges;  and  3)  knowledge  of  the            consequences of  the guilty plea."   Id., slip op. at  7.  We                                                 ___            reiterated that under the law of this circuit, in determining            whether  there has  been  a core  violation,  "we review  the            totality  of  the  circumstances   surrounding  the  Rule  11            hearing."  Id.   "What is critical  is the substance of  what                       ___            was  communicated  by  the   trial  court,  and  what  should            reasonably have been understood by the defendant, rather than            the   form  of  the  communication."    Id.    We  ended  our                                                    ___            restatement of  basic principles by noting  that our standard            of  review is abuse of discretion, and that the trial court's            findings of fact  are reviewed  only for clear  error.   Id.,                                                                     ___            slip op. at 8.                        On  the  question  whether  there is  an  abuse  of            discretion in a Rule 11 setting we have observed:                         Yet "discretion" may be  somewhat more                      limited  where  there   is  an   outright                      violation of  Rule 11 rather  than merely                      second thoughts by a  defendant prompting                      him to reconsider his plea.            United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994).  We            _____________    _______            also noted:                         Finally,  we  have considered  whether                      guilty pleas  should be  set aside .  . .                      under some type of per se rule or because                      of a threatened  miscarriage of  justice.                      On the former point, we think that  there                      may  well   be   Rule  11   hearings   so                      fundamentally defective that harm must be                      assumed or deemed irrelevant.                                         -6-                                          6            Id. at 45.            ___                                         III.                                         III.                      Our  review   of  the  Rule   11  plea  proceedings            discloses  two  serious errors.    First,  was the  following            statement by the                                          -7-                                          7            court:                         THE COURT:  For  this to be an offense                      the  Government  has to  prove  that this                      conduct described in  the indictment  was                      done willfully and knowingly, was entered                      into  willfully  and  knowingly  by  you.                      That  means that  the  Government has  to                      prove that at some  point in time you had                      some  reasonable understanding  that what                      you were about to do and actually did was                      wrong,   was    marginal   conduct,   was                      questionable,  was of  the kind  of thing                      that if somebody would find out you could                      be in the  predicament that  you are  now                      in.  In  other words, that  you had a  --                      had or  should  have had  a  pretty  good                      understanding  that  this  was wrong  and                      against the law and  you decided to do it                      that way.   That is  an element.   Do you                      understand that?                         THE DEFENDANT:  Yes, sir.                      The opening sentence of  the statement by the court            was not incorrect.  It told the defendant that the government            had to  prove that the  "conduct described in  the indictment            was done willfully and  knowingly, was entered into willfully            and  knowingly  by  you."    The  meaning  of  willfully  and            knowingly was, however, misstated by the court in the balance            of its explanation.  Willfully and  knowingly in the criminal            context  does not mean that  all the government  had to prove            was that  defendant had "some reasonable  understanding" that            what he did  "was marginal conduct,  was questionable."   Nor            was the government's burden of  proof limited to showing that            defendant "had or should have had a pretty good understanding            that this was wrong and against the law."  The government had                                         -8-                                          8            to prove in the context of this case that defendant knew that            the  trousers belonged to the government when he sold them to            others.   See United States v.  McRee, 7 F.3d 976,  980 (11th                      ___ _____________     _____            Cir.  1993); United States v. Lanier, 920 F.2d 887, 895 (11th                         _____________    ______            Cir. 1991).  Significantly, there was no mention of intent or            mens rea in the first statement by the court.            ____ ___                      At the end of the plea hearing this colloquy took             place:                         THE  COURT:  May  I ask you something,                      Mr. Ribas, just tell me in your own words                      what was the mental process, if you will,                      that  led you  to do  these two  sales to                      this Tiendas Militares?                         THE DEFENDANT:   Well, your  Honor, at                      the  time  the  company  was  having very                      serious  financial  difficulties  and  we                      were attempting to raise cash to continue                      the operations and continue getting to be                      a viable organization.   And although  it                                               ________________                      has happened that it  is a crime, at that                      _________________________________________                      instant  I  was not  consciously stealing                      _________________________________________                      and  selling,  but, obviously,  I  made a                      _________________________________________                      mistake  that  is  typified as  a  crime.                      _________________________________________                      (Emphasis added.)                         THE COURT:   But  you  do accept  now,                                      _________________________                      that  when you look  into retrospect into                      _________________________________________                      the whole situation,  obviously, you  did                      _________________________________________                      something  wrong  and  against  the  law,                      _________________________________________                      without a doubt?  (Emphasis added.)                      ________________                         THE DEFENDANT:  Yes, sir.                         THE COURT:  I understand.  You have no                      doubt about that part now?                         THE DEFENDANT:  Excuse me, sir?                          THE COURT:   You  have no  doubt about                      that part now?                                         -9-                                          9                         THE DEFENDANT:  No, sir.                         THE  COURT:  Perhaps  you were  -- you                      acted too  fast and you looked  the other                      way, that's what happened in this case?                         THE DEFENDANT:  Yes, sir.                         THE COURT:  Okay, I understand.                      Very well.  The  Court is going to accept                      the  plea   of  guilty  entered   by  the                      defendant as  to  Counts Four  and  Five.                      Judgment  of  guilty  will   be  entered.                      Presentence Report will  be ordered.  And                      I will give you a sentencing date.                      In  Morrisette  v.  United  States,  342  U.S.  246                          __________      ______________            (1952), it  was decided unanimously that  criminal intent was            an essential element of an offense under 18 U.S.C.   641, the            same  statute that Ribas was  accused of violating.   Part of            Justice Jackson's  opinion was an historical  exegesis of the            role of intent in criminal law.  His words read as eloquently            now as  they did forty-odd years ago.   One small sample will            suffice:                         The  contention  that  an  injury  can                      amount to a crime  only when inflicted by                      intention is no  provincial or  transient                      notion.     It   is  as   universal   and                      persistent  in mature  systems of  law as                      belief in freedom of the human will and a                      consequent ability and duty of the normal                      individual  to  choose  between good  and                      evil.            Id.  at 250  (footnote  omitted).   Morrisette was  convicted            ___            under the  statute for  collecting bomb  casings from  a U.S.            military  range and selling them  as scrap metal.   He argued            that  he did not have the requisite intent because he thought                                         -10-                                          10            that the casings were abandoned.  The district court had held            that the  statute did not require  a showing of  intent.  The            Court, in reversing, concluded that  the statute did demand a            showing  of   intent  because  the  statute   did  not  cover            "unwitting, inadvertent, and unintended conversions."  Id. at                                                                   ___            270.  The  Court went on to  point out:  "Knowing  conversion            adds significantly  to the range of  protection of government            property   without  interpreting  it   to  furnish  unwitting            conversions."  Id.  at 272.  It is clear  that intent was the                           ___            critical element of the offense with which Ribas was charged.                      The  colloquy between  the court  and Ribas  at the            conclusion of the plea hearing  should have alerted the court            that Ribas was claiming  that, at the time the  trousers were            sold to third  parties, he did not intend to  commit a crime.            He told the court:  "And  although it has happened that it is            a crime, at that  instant I was not consciously  stealing and            selling,  but, obviously I made a mistake that is typified as            a  crime."  Upon hearing  this, the court,  instead of asking            him what his intent  was at the time, suggested  that looking            back  in retrospect  Ribas now  knew  that he  "obviously did                  __ __________            something wrong and against the law."  But what Ribas knew at            the time  of the  plea  hearing does  not establish  criminal            intent at  the time the  trouser sales were made.   Ribas had            suggested to the court that  he did not intend to  commit the            crime  charged.    This   was  tantamount  to  asserting  his                                         -11-                                          11            innocence.  Instead  of accepting the  plea the court  should            have, at  the very least, inquired as to Ribas' intent at the            time the trousers were sold.                      We  recognize that  Ribas  was an  attorney and  an            engineer,  which   means  that  he  was   well  educated  and            presumably  intelligent.   This,  however,  cannot erase  the            manifest errors made  by the district  court in two  critical            areas of the Rule  11 colloquy.  The  element of scienter  is            very important in a case in which the property is lawfully in            the possession of the  defendant, and whether or not  a crime            has been committed depends almost entirely on the defendant's            understanding  of  what  he  was  entitled  to  do  with  the            property.   This can be  and usually is  a complicated matter            when one is dealing with government contracts and procurement            regulations.  In a somewhat similar case in the Fifth Circuit            brought under 18 U.S.C.   641, the court reversed defendants'            convictions.  After pointing  out that this kind of  case was            civil, rather than criminal in nature, the court stated:                      The government indicted appellants on the                      theory  that  the  title  vesting  clause                      truly   vested   title,  and   gave  full                      ownership  rights  to the  government for                      materials  upon  which progress  payments                      had been  advanced.   The  title  vesting                      provision  of   the  Federal  Acquisition                      Regulations  creates  no   more  than   a                      security  interest  in  the  government's                      favor, and cannot be,  under the facts of                      this case, a  basis for prosecution under                      18 U.S.C.   641.  Appellants' convictions                      are REVERSED.                                         -12-                                          12            United States v. Hartec Enterprises, Inc., 967 F.2d 130, 134-            _____________    ________________________            35 (5th Cir. 1992).  We of course do not intimate that Hartec                                                                   ______            applies to the case before us.  We quote it only to emphasize            that  during the  plea colloquy a  proper explanation  of the            scienter element is more than mere formality.                      We think  that the two erroneous  statements by the            district court combined to create a core violation of Rule 11            and were  so fundamentally defective as  to require reversal.            United States v. Raineri, 42 F.3d at 41 and 45.            _____________    _______                      We are fully cognizant of the case of United States                                                            _____________            v. Japa,  994 F.2d 899, 903-04  (1st Cir. 1993), in  which we               ____            held that the omission  of an intent inquiry by  the district            court, combined with the failure of the prosecutor to provide            in  the proof statement any  reference to a  critical fact in            one  of  the  counts of  the  indictment,  did  not affect  a            substantial right  of the  defendant under  Fed. R. Crim.  P.            11(A).   Japa is readily  distinguishable.  Count  Two of the                     ____            indictment in  Japa charged that defendant  did knowingly and                           ____            intentionally possess 500 grams of cocaine "and did so within            1,000 feet"  of a school.  Japa was not asked during the plea            hearing whether he intended to possess and distribute cocaine            within 1,000 feet of a school.  We noted that the presentence            report stated  that  defendant's apartment  was within  1,000            feet of a school yard,  and that defendant did not  object to            this statement.    Another  factor in  our  ruling  was  that                                         -13-                                          13            defendant  admitted in response to a question by the court in            Count  One  (conspiracy)  that   he  and  the  other  alleged            conspirator possessed and intended to distribute 500 grams of            cocaine.  The admitted  facts made it clear that  the cocaine            referred to in Counts One  and Two was the same and  that the            distribution  would  start  at  defendant's  apartment.    We            followed United States  v. Zorilla, 982  F.2d 28, 30-31  (1st                     _____________     _______            Cir. 1992), and held:                      that   information  in   the  presentence                      report  and/or  adduced  at the  probable                      cause hearing was  sufficient to  satisfy                      the  elements of  the crime  charged even                      though the district court judge failed to                      establish a factual basis for the plea at                      the hearing.            Japa, 994 F.2d at 904.            ____                      In  the case  before  us there  is  nothing in  the            presentence report indicating that Ribas  intended to convert            and  steal  the trousers  from the  United  States.   We have            reviewed carefully  the  extensive testimony  and  affidavits            adduced at the hearing  on the motion to withdraw  the guilty            plea.  We are  satisfied that there is  no basis for  finding            that the  guilty  plea was  involuntary  due to  pressure  or            turmoil.  The evidence  shows that the defendant consistently            claimed that he was innocent of any wrong-doing.  Indeed, his            protestations  of innocence continued  through the sentencing            hearing.   This  is not a  case in which  claims of innocence            have been conjured up  after the fact for purposes  of taking                                         -14-                                          14            advantage of some technical  inadequacy in the plea colloquy.            Nor is this a situation where the motion to withdraw the plea            has  its  genesis  in  the  sentence.    Rather,  unlike  the            defendantin Japa,Ribasmovedtowithdrawhispleabeforesentencing.                        ____                      Finally, we note that the government would not seem            to be prejudiced by the delay in  starting trial.  Our review            of  the  record shows  that the  evidence  in this  case will            mainly  be documentary.  The government does not have to rely            on the vagaries of the memory of witnesses.  The key evidence            will  be   the  written  contracts  between   Ribas  and  the            government and the applicable procurement regulations.                                      CONCLUSION                                      CONCLUSION                                      __________                      We find that there  was a fair and just  reason for            allowing Ribas  to withdraw his plea.   See Fed. R.  Crim. P.                                                    ___            32(d).                      The judgment  of the district court  is vacated and            the  case is remanded for  trial, which shall  be held before            another judge.                      So Ordered.                      So Ordered.                      ___________                                         -15-                                          15
