Inmates of Suffolk County Jail v. Kearney

577 F.2d 761
CourtCourt of Appeals for the First Circuit
DecidedJune 15, 1978
DocketNo. 78-1216
StatusPublished
Cited by1 cases

This text of 577 F.2d 761 (Inmates of Suffolk County Jail v. Kearney) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inmates of Suffolk County Jail v. Kearney, 577 F.2d 761 (1st Cir. 1978).

Opinion

MOORE, Circuit Judge:

After a jury trial, defendants Herminio Cortes Rivera (Cortes) and Orlando M. Cepeda Penes (Cepeda), were convicted of possessing with intent to distribute about 170 pounds of marijuana. Cepeda was also convicted of importation of the drug; Cortes was acquitted on that count. Both defendants have filed separate appeals from the judgments of conviction entered against them; Cortes also appeals from an order denying a motion for a new trial predicated on the alleged disqualification of one of his trial jurors. We find no merit to any of appellants’ numerous claims of error, and we affirm.

I.

While working at Puerto Rico’s Isla Verde Airport on December 3, 1975, Customs Patrol Officer Carlos Flores had occasion to inspect appellant Cepeda’s luggage when the latter returned to Puerto Rico from a trip to Colombia.1 The officer found one seed and some scraps that looked to him like marijuana. He handed the seed to another agent who, after inspecting it, apparently threw it away. Apparently, because Cepeda was well-known to the Puerto Rican community as a baseball star, and because the quantity found was negligible, no action was then taken. However, by reason of this incident, the agents’ suspicions were aroused, and they initiated a monitor on any package addressed to Cepe-da originating from Colombia.

The officers’ suspicions were borne out, for on December 12, two parcels and two suitcases awaited Cepeda at the airport. The Government had determined that the parcels contained marijuana by the time Cepeda arrived at the airport on that day, along with defendant Cortes, who appeared in a separate vehicle. Prior to obtaining the parcels, Cepeda apparently went to the Airport’s Excise Tax Office. Thereafter, he placed one of the parcels in the rear of his car, and Cortes put the other parcel in his own trunk after being called over to the scene by Cepeda. The latter also placed the suitcases in the rear seat of his own vehicle.

At this juncture, Government agents who were observing the events arrested the two men and gave them Miranda warnings. Both signed acceptances thereof.

After their arrest, the defendants were kept at the airport while the evidence was being marked. Two hours later, at about midday, they were taken to the office of the Drug Enforcement Agency for booking. Subsequently, at about 4:00 or 5:00 in the afternoon, they were taken to a magistrate. During this period, according to various Government witnesses, both defendants made incriminatory statements which were admitted against them at trial.

II.

Prior to trial, both defendants, then represented (with the consent of both) by the same attorney, expressed a desire to plead nolo contendere to Count 1 of the indictment, the importation count. Cortes actually entered the plea, but withdrew it [756]*756because of the events which followed, now urged as a ground for reversal of the convictions.

After Cortes entered his plea, the district judge, prior to accepting that plea, addressed Cortes, inquiring of him: “[D]o you understand that this Court need not accept your plea unless the Court is satisfied that you are guilty and that you fully understand your rights?” At this point, defense counsel interrupted the questioning to press the point he had earlier discussed with the judge — that the judge need not, and should not, inquire of the defendant as to his actual culpability in regard to a plea of nolo contendere. According to defense counsel, although Fed.R.Crim.P. 11 requires a judge to establish a factual basis for a plea of guilty, the same is not true, under the Rule, for a nolo plea. The judge then noted that, to him, a plea of nolo “means the same thing as a plea of guilty only that there has a certain provisal [sic] that whatever is admitted during the Nolo Contendere cannot be used in civil proceedings”. He continued:

“There is one more difference which is; that there is no need for the Court to establish a basis in fact from the manifestation of the defendant and the Court may very well satisfy that issue with whatever the government announces it has. But in as much as the effect of the plea it is the same, I certainly have to find . . . that the defendant was in fact involved in the offense charged in the first count of the indictment.”

After the judge thus stated his intent to establish a factual basis for the plea, defense counsel immediately moved to have the plea withdrawn.

The judge’s refusal to accept the plea of nolo contendere before first extracting admissions of guilt from the defendant is assigned as reversible error. We disagree. First, it is not at all clear from the record that the judge was unwilling to establish a factual basis for the plea by inquiring of the Government as to its evidence against the defendant. As such, no incriminating statements would have been elicited from the defendant. Second, although it is true, as defendant argues, that Rule 11 does not require a judge to establish a factual basis for a nolo plea, neither does it expressly preclude such inquiry. While it may be desirable, in some cases, for a judge to permit a defendant to plead nolo without requiring a factual basis, see North Carolina v. Alford, 400 U.S. 25, 35-36 n. 8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), Rule 11 does not prohibit a judge from exercising his discretion in determining whether to accept such a plea and imposing conditions on its acceptance, subject to review only for abuse of discretion. See United States v. Gratton, 525 F.2d 1161, 1163 (7th Cir. 1975), application denied, 423 U.S. 1067, 96 S.Ct. 1090, 46 L.Ed.2d 658 (1976); cf. United States v. Biscoe, 518 F.2d 95 (1st Cir. 1975) (trial judge is under no obligation to accept a guilty plea); United States v. Bednarski, 445 F.2d 364 (1st Cir. 1971). While the trial judge may have acted under an erroneous view of the law in this case, his refusal to accept the plea without requiring a factual basis therefor is not a basis for reversal, for acceptance of a nolo plea is solely a matter of grace, something to which defendants are by no means automatically entitled. Appellants have demonstrated no abuse of discretion, especially since the record shows that they cut short the plea colloquy prior to hearing the trial judge’s explanation of how a factual basis might be established. Had they permitted the judge to continue, he could well have assured the defendants that the facts would be sought from the Government rather than from the defendants. Indeed, in response to defendants’ motion for disqualification of the trial judge, which followed the plea incidents and which we discuss below, Judge Pesqu-era stated that he was in fact ready to satisfy himself of defendants’ involvement by means of the Government’s evidence. In any event, appellants were not entitled to have their nolo pleas accepted by the court, and we find no reason for reversal on this ground.

[757]*757III.

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577 F.2d 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inmates-of-suffolk-county-jail-v-kearney-ca1-1978.