
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1236                                    UNITED STATES,                                      Appellee,                                          v.                              AMADOR IRIZARRY-SANABRIA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                _____________________               J.  Michael McGuinness,  by Appointment  of  the Court,  for               ______________________          appellant.               Jos   A. Quiles-Espinosa,  Senior  Litigation Counsel,  with               ________________________          whom Guillermo  Gil, United  States Attorney,  and Nelson  P rez-               ______________                                ______________          Sosa,  Assistant  United  States  Attorney,  were  on  brief  for          ____          appellee.                                 ____________________                                   August 22, 1996                                 ____________________                    Per  curiam.     Defendant-Appellant  Amador  Irizarry-                    Per  curiam.                    ___________          Sanabria  pled guilty to conspiracy to  import marijuana into the          United  States, in violation of 21 U.S.C.     952 & 963.  For the          reasons stated herein, we affirm.                                      BACKGROUND                                      BACKGROUND                    Irizarry-Sanabria  was indicted  in  March of  1993 and          pled not guilty  at his  arraignment.  His  motion to dismiss  on          double jeopardy  grounds, premised  on a  previous conviction  of          conspiracy to import  marijuana,1 was denied.   In October  1993,          Irizarry-Sanabria entered a change of  plea to guilty pursuant to          a plea  agreement.  In  December 1993, he  filed a pro  se motion                                                             _______          seeking a  withdrawal of that plea; his counsel filed a motion in          support of  the pro se motion  and memorandum of law  in February                          ______          1994.   The district  court denied the  motion to  withdraw plea,          without an  evidentiary hearing.  Irizarry-Sanabria was sentenced          to 121 months imprisonment.                                      DISCUSSION                                      DISCUSSION                          A.  Motion to Withdraw Guilty Plea                          A.  Motion to Withdraw Guilty Plea                              ______________________________                    We  review the  court's refusal  of Irizarry-Sanabria's          motion to withdraw his guilty plea, made prior to sentencing, for          abuse of discretion.   See United States v. Tilley,  964 F.2d 66,                                 ___ _____________    ______          72 (1st Cir. 1992).  To prevail,  Irizarry-Sanabria must persuade          the  court that  he has shown  a "fair  and just reason"  for his          request.  Fed. R. Crim. P. 32(e).   We follow an establishedtest:                                        ____________________          1  His conviction for the  first conspiracy was affirmed by  this          court in United States v. And jar, 49 F.3d 16 (1st Cir. 1995).                   _____________    _______                                         -2-                      A court must  consider several factors in                      weighing whether  a defendant  meets this                      burden,                         the  most significant  of which  is                         whether  the   plea  was   knowing,                         voluntary  and  intelligent  within                         the  meaning  of [Federal  Rule  of                         Criminal Procedure] 11.   The other                         factors include:  1) the force  and                         plausibility   of   the   proffered                         reason;  2)   the  timing   of  the                         request; 3)  whether the  defendant                         has asserted  his legal  innocence;                         and  4)  whether  the  parties  had                         reached a plea agreement.           United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996)  (quoting          _____________    ____          United States v.  Cotal-Crespo, 47 F.3d 1, 3-4  (1st Cir.), cert.          _____________     ____________                              _____          denied, __ U.S. __, 116 S. Ct. 94 (1995) (citation omitted)).  If          ______          defendant meets the rigors of  this test, we evaluate whether the          government will suffer any demonstrable prejudice.  See id.                                                               ___ ___                    First, we find,  and counsel for defendant  admitted at          oral argument,  that the Rule  11 plea colloquy was  thorough and          comprehensive.    Irizarry-Sanabria  argues  that  his  plea  was          nonetheless not knowing, voluntary and intelligent because it was          made under duress, due to the pressure of his attorney.  However,          during  the colloquy, Irizarry-Sanabria  denied that he  had been          coerced  to accept  the  plea bargain,  acknowledged that  he had          discussed its  terms  with  counsel, and  affirmed  that  he  was          satisfied with  his legal  representation.   "Such statements  in          open court during  a plea hearing 'carry a  strong presumption of          verity.'"  United  States v.  Mart nez-Molina, 64  F.3d 719,  733                     ______________     _______________          (1st Cir. 1995)  (quoting Blackledge v. Allison, 431  U.S. 63, 74                                    __________    _______          (1977)).  The pro se motion offers nothing more than a conclusory                        ______                                         -3-          statement  that the  plea  was  "made under  duress,  due to  the          urgency and  pressure of  all the  [co-defendants'] attorneys  of          this case,"  including Irizarry-Sanabria's  counsel.   In denying          the motion, the  district court noted that  Irizarry-Sanabria was          informed at the change  of plea hearing that he could  proceed to          trial that  same  day if  he  chose, and  commented  that he  was          "alert, calm,  confident and  knowledgeable of  his rights,"  and          "never showed  any hesitancy or  reservation about his  desire to          plead guilty."   Order at  6.  In  these circumstances, where  we          have a thorough, comprehensive Rule  11 colloquy on one hand, and          a naked conclusory claim of duress unsupported by any allegations          of fact on  the other, we find that Irizarry-Sanabria's eleventh-          hour claim of  duress lacks merit, and accordingly  find that his          plea was made knowingly, voluntarily and intelligently within the          meaning of Rule 11.                    Our  second factor weighs the force and plausibility of          the proffered reasons.  We have already weighed the duress claim;          we briefly  examine Irizarry-Sanabria's  other asserted  reasons.          First, Irizarry-Sanabria claims he is innocent, and that he could          prove it,  without specifying  anything regarding  the nature  of          such proof.  At the same time,  during the change of plea hearing          he corrected the court's account  of the events of the conspiracy          several times,  clarifying what his  participation had been.   In          such circumstances, we find that the district court did not abuse          its discretion  by "refusing  to give weight  to a  self-serving,          unsupported claim  of innocence."   United  States v.  Ramos, 810                                              ______________     _____                                         -4-          F.2d 308, 313 (1st Cir.  1987) (finding that defendant's claim of          innocence  lacked merit  where  he did  not  assert innocence  at          change  of plea  hearing and  did not  substantiate his  claim of          exculpatory  evidence); see  Isom,  85  F.2d  at  837  (rejecting                                  ___  ____          defendant's  pro   se   motion  asserting   innocence  where   no                       ________          information was provided regarding  alleged exculpatory evidence,          and  defendant provided specific information regarding the events          of the crime at Rule 11 hearing).                      Second, Irizarry-Sanabria's claim that  he did not have          access to the files on the case gives us little pause,  given the          thoroughness of the  Rule 11 hearing and the  fact that Irizarry-          Sanabria does not offer any indication of what he expects to find          in the files, or what prejudice  he has suffered.  Similarly, his          claim that his requests for  legal assistance "in this matter" --          presumably, his motion  and claim of innocence and  duress -- had          been to no avail is unconvincing, as his attorney followed up the          pro se motion with a motion in support and memorandum of law.            ______                    As for  the timing  of  the motion,  almost two  months          elapsed between the  change of plea hearing on  October 21, 1993,          and Irizarry-Sanabria's pro  se motion of December 15,  1993.  We                                  _______          have   previously  found  that   such  a  delay   weighs  against          defendant's position.2   See,  e.g., Isom, 85  F.3d at  839 (two-                                   ___   ____  ____                                        ____________________          2   Appellant  argues that  this  measure ignores  the fact  that          Irizarry-Sanabria's  change of heart undoubtedly occurred at some          time prior to the date of service.  Nonetheless, in such cases we          take as our measure the date of  the motion to withdraw the plea,          regardless  of  when  the  defendant's  subjective  decision  was          actually made.  See Isom, 85 F.3d at 838-39 (collecting cases).                          ___ ____                                         -5-          month delay);  United States  v. Pellerito,  878 F.2d  1535, 1541                         _____________     _________          (1st Cir. 1989) (eight week  delay); United States v. Crosby, 714                                               _____________    ______          F.2d 185, 192  (1st Cir. 1983) (eight week  delay), cert. denied,                                                              ____________          464 U.S. 1045 (1984).                    As for  the final  two factors,  we  note, first,  that          Irizarry-Sanabria has  claimed his innocence.   Nonetheless, "the          mere protestation of  legal innocence cannot in and  of itself be          issue-determinative."  United  States v. Kobrosky, 711  F.2d 449,                                 ______________    ________          455  (1st  Cir.  1983).    Second, the  parties  reached  a  plea          agreement, which neither alleges has been broken.                    As our  analysis of all  the factors weighs  heavily in          favor  of  the district  court's  decision, we  need  not address          whether granting  the  motion would  result in  prejudice to  the          government before affirming the decision below.                    Irizarry-Sanabria asserts that the district court erred          in  denying him an  evidentiary hearing to  factually bolster his          claims.  However, we note that                      evidentiary hearings  on motions  are the                      exception,  not   the  rule.     We  have                      repeatedly  stated  that,   even  in  the                      criminal  context,  a  defendant  is  not                      entitled as  of right  to an  evidentiary                      hearing  on   a  pretrial   or  posttrial                      motion.    Thus,   a  party  seeking   an                      evidentiary hearing  must carry  a fairly                      heavy burden of  demonstrating a need for                      special treatment.          United  States  v. McGill,  11  F.3d  223,  225 (1st  Cir.  1993)          ______________     ______          (citations  omitted).     Irizarry-Sanabria's   naked  conclusory          statements offer us no basis  for finding that the district court          abused  its discretion in  not holding an  evidentiary hearing on                                         -6-          his  claims.   See, e.g., Ramos,  810 F.2d at  314; Kobrosky, 711                         ___  ____  _____                     ________          F.2d at 457; see also Isom, 85 F.3d at 838 (collecting cases).                       ________ ____                    On  appeal, counsel  for  defendant  argues that  "most          individuals" are too intimidated by  the circumstances of a  Rule          11 plea colloquy to stop and  tell the court that they have  been          coerced  into pleading  guilty.    Such  generalizations  do  not          persuade  us that  the district  court  abused its  discretion in          making its decision -- a  decision "facilitated because the judge          has  overseen   pretrial  proceedings,  conducted  the   Rule  11          inquiries, accepted the original guilty  plea, and heard at first          hand the  reasons bearing upon  its withdrawal."   Pellerito, 878                                                             _________          F.2d at 1538.  Indeed, the fact  that during the Rule 11 colloquy          Irizarry-Sanabria  corrected the court's account of the events on          several points belies the image of a timid defendant.                    We are given more pause by appellant's contention, made          at  oral argument, that  a potential conflict  arises because the          counsel who Irizarry-Sanabria  alleges put him under  duress also          helped him litigate the motion for withdrawal of his guilty plea.          However,  in this  circumstance,  where we  have  a complete  and          detailed plea colloquy, a detailed order denying the  motion, and          only  the  most sparse  allegations  on  the  part  of  Irizarry-          Sanabria, we  cannot  find that  the  district court  abused  its          discretion,  even taking  into  account  the  pro  se  nature  of                                                        _______          Irizarry-Sanabria's motion.                              B.  Double Jeopardy Claims                              B.  Double Jeopardy Claims                                  ______________________                    Irizarry-Sanabria next  argues that the  district court                                         -7-          erred in failing to dismiss the indictment against him because he          had previously  been found  guilty in a  case involving  the same          conspiracy.  He alleges that  the indictment in this case amounts          to  prosecuting a single conspiracy as two separate conspiracies,          in violation of his double  jeopardy guarantee.  However, we find          that under Local Rule  510.2 of the  District of Puerto Rico,  he          has waived this  argument by failing to object  to the magistrate          judge's report and recommendation in  writing within ten days, as          the  report and  recommendation warned.   See  United States   v.                                                    ___  _____________          Valencia-Copete,  792 F.2d  4, 6  (1st Cir.  1986) (after  proper          _______________          notice,  failure to  file a  specific  objection to  magistrate's          report  will  waive the  right  to  appeal);  see,  e.g.,  Henley                                                        ___   ____   ______          Drilling Co. v.  McGee, 36 F.3d 143, 151 (1st  Cir. 1994); Borden          ____________     _____                                     ______          v. Secretary of  Health and Human  Services, 836 F.2d  4, 6  (1st             ________________________________________          Cir. 1987).                    Although we acknowledge an appellate court's discretion          to excuse  waiver "in  the interests of  justice," see  Thomas v.                                                             ___  ______          Arn, 474 U.S.  140, 155 & n.15  (1986), in this  case we find  no          ___          basis   for  such  action  because  we  conclude  that  Irizarry-          Sanabria's arguments likely would not  prevail on the merits.  We          weigh  five factors in determining whether two charged conspiracy          are actually one  for double jeopardy purposes:   the timing; the          personnel; the locations involved; the evidence used; and whether          the same statutes  were implicated.  See United  States v. G mez-                                               ___ ______________    ______          Pab n, 911 F.2d 847, 860 (1st Cir. 1990), cert. denied,  498 U.S.          _____                                     ____________          1074  (1991).   The  only facts  Irizarry-Sanabria  points to  in                                         -8-          arguing that  there are two  distinct conspiracies here  are that          they both  involve the  same amount of  marijuana, and  that they          occurred within several weeks of each other.  However, given that          it was not  the same shipment of  marijuana, that it was  not the          same Colombian supplier,  that the only common  participants were          the  defendant  and  a  confidential informant  Irizarry-Sanabria          introduced to his co-conspirators, and that the importation route          was different, see And jar, 49 F.3d at 18-19 (setting out facts),                         ___ _______          we  are hard pressed to  see how these  two conspiracies would be          viewed as one.                                   C.  Other Claims                                   C.  Other Claims                                       ____________                    Irizarry-Sanabria  also  alleges  that  the  government          should have  been collaterally estopped  from relitigating  these          issues.   However,  he does  not  specify what  ultimate fact  he          contends has  been resolved in  his favor.  Similarly,  he argues          that   his  substantive  due  process  rights  were  violated  by          prosecution for  conduct that  he was  already convicted  of, and          that the totality of the  trial court's errors and the cumulative          effect  thereof constituted prejudicial  error, depriving  him of          his  due process,  both without  pointing to any  error.   To the          extent  that these arguments have  not already been deemed waived          under our  double jeopardy holding,  we now find them  waived, as          "[i]t is  not enough merely to mention a possible argument in the          most skeletal way, leaving the court to do counsel's work, create          the  ossature for  the argument,  and  put flesh  on its  bones."          United  States v.  Zannino,  895  F.2d 1,  17  (1st Cir.),  cert.          ______________     _______                                  _____                                         -9-          denied,  494 U.S.  1082 (1990); see,  e.g., Damon v.  Sun Co., 87          ______                          ___   ____  _____     _______          F.3d 1467, 1485 (1st Cir. 1996).                                      CONCLUSION                                      CONCLUSION                    For  the reasons presented  above, the decision  of the          district court is affirmed.                            affirmed                            ________                                         -10-
