NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50176
Plaintiff-Appellee, D.C. No. 8:15-cr-00095-AG-1
v. MEMORANDUM* LUIZ EDUARDO BAPTISTA, AKA Luis Eduardo Baptista, AKA Luis Eduardo Batista, AKA Scotty Griges Oram,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding
Argued and Submitted May 17, 2018 Pasadena, California
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Luiz Baptista appeals from the district court’s denial of his motion to present
a necessity defense and denial of his motion to withdraw his guilty plea. As the
parties are familiar with the facts, we do not recount them here. We affirm in part,
vacate in part, and remand.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. As a matter of law, Baptista did not offer sufficient proof to support a
necessity defense. See United States v. Arellano-Rivera, 244 F.3d 1119, 1125 (9th
Cir. 2001). Namely, he failed to offer sufficient proof that “he reasonably believed
there were no other legal alternatives to violating the law.” United States v.
Perdomo-Espana, 522 F.3d 983, 988 (9th Cir. 2008); see also United States v.
Schoon, 971 F.2d 193, 195 (9th Cir. 1991) (“[A] court may preclude invocation of
the [necessity] defense if proof is deficient with regard to any of the four
elements.” (internal quotation marks omitted)). Baptista argues that he could not
have traveled with his Brazilian passport because doing so would have jeopardized
his pending immigration application in the United States. This makes clear that
Baptista did not want to use a legal alternative, not that one did not exist. Baptista
also argues that he could not have traveled with his Brazilian passport because it
had expired in May 2015, prior to the time he felt his children’s harm was
imminent in August 2015. This argument is foreclosed by the fact that Baptista
took steps to obtain a false passport in April 2015.
2. Although Baptista preserved his right to appeal the denial of his
necessity-defense motion and to challenge the voluntariness of his guilty plea,
Baptista waived his other appellate rights. We read “general waivers of the right to
appeal to cover . . . an appeal from the denial of a motion to withdraw a guilty
plea.” United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011).
2 Accordingly, we must decide whether Baptista’s waiver is enforceable before we
may consider whether the district court abused its discretion in denying Baptista’s
motion to withdraw his guilty plea. We conclude that Baptista’s waiver became
unenforceable when the district judge advised him, “without qualification, that he
. . . [had] a right to appeal.” United States v. Jeronimo, 398 F.3d 1149, 1153 n.2
(9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo,
496 F.3d 947, 957 (9th Cir. 2007) (en banc). At Baptista’s sentencing hearing, the
district court stated, “[I]f you wish to appeal, you must do so within 14—within
days [sic].” This “unambiguous” statement gave Baptista a “reasonable
expectation” of his right to appeal. United States v. Arias-Espinosa, 704 F.3d 616,
619 (9th Cir. 2012) (internal quotation marks omitted). Compare id. at 618–19
(holding that the statement “you may have a right to appeal” did not affect the
waiver (emphasis added)), and United States v. Aguilar-Muniz, 156 F.3d 974, 977
(9th Cir. 1998) (holding that the statement “if you believe the waiver is
unenforceable, you can present that theory to the appellate court” did not affect the
waiver (emphasis added)), and United States v. Schuman, 127 F.3d 815, 817 (9th
Cir. 1997) (holding that the statement “It’s up to the Ninth Circuit to decide
whether under the circumstances [the defendant has] lost his right of appeal” did
not affect the waiver), with United States v. Buchanan, 59 F.3d 914, 917–18 (9th
Cir. 1995) (holding that the statement “you have the right to appeal” rendered the
3 waiver unenforceable (emphasis added)).
Having concluded that Baptista’s waiver is unenforceable, we turn to the
district court’s denial of Baptista’s motion to withdraw his guilty plea. Baptista
moved to withdraw his guilty plea after learning that his wife was the
government’s original source of information and that she received relocation
assistance in connection with the investigation.
A defendant “should be freely allowed” to withdraw a guilty plea before
sentencing if he “can show a fair and just reason for requesting the withdrawal.”
United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009) (quoting Fed. R.
Crim. P. 11(d)(2)(B)). When a defendant’s reason for withdrawing a guilty plea is
new evidence, the district court should consider whether the evidence is actually
new. See id. And in determining whether the new evidence provides a fair and
just reason for withdrawal, the district court should ask whether the new evidence
could have motivated a defendant not to plead guilty. See id. The district court
may not, however, require the defendant to “show that his motion will be
successful on its merits.” United States v. McTiernan, 546 F.3d 1160, 1168 (9th
Cir. 2008).
First, the district court failed to make any findings as to the novelty of this
evidence, stating that it “[wasn’t] persuaded by Baptista’s characterization of this
purportedly ‘new’ evidence.” As the government has conceded that it had not
4 disclosed that Baptista’s wife was its original source or that it had provided her
relocation assistance until after his guilty plea, it is uncontroverted that this
evidence was “unknown to the defense at the time of the plea.” United States v.
Garcia, 401 F.3d 1008, 1010 n.2 (9th Cir. 2005). The district court therefore erred
in doubting the newness of the evidence.
Second, the district court misapplied the fair-and-just-reasons standard in
denying Baptista’s motion. See id. at 1011. The district court determined that
“several of Baptista’s purported [new] defenses” were “foreclose[d]” (1) because
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50176
Plaintiff-Appellee, D.C. No. 8:15-cr-00095-AG-1
v. MEMORANDUM* LUIZ EDUARDO BAPTISTA, AKA Luis Eduardo Baptista, AKA Luis Eduardo Batista, AKA Scotty Griges Oram,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding
Argued and Submitted May 17, 2018 Pasadena, California
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Luiz Baptista appeals from the district court’s denial of his motion to present
a necessity defense and denial of his motion to withdraw his guilty plea. As the
parties are familiar with the facts, we do not recount them here. We affirm in part,
vacate in part, and remand.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. As a matter of law, Baptista did not offer sufficient proof to support a
necessity defense. See United States v. Arellano-Rivera, 244 F.3d 1119, 1125 (9th
Cir. 2001). Namely, he failed to offer sufficient proof that “he reasonably believed
there were no other legal alternatives to violating the law.” United States v.
Perdomo-Espana, 522 F.3d 983, 988 (9th Cir. 2008); see also United States v.
Schoon, 971 F.2d 193, 195 (9th Cir. 1991) (“[A] court may preclude invocation of
the [necessity] defense if proof is deficient with regard to any of the four
elements.” (internal quotation marks omitted)). Baptista argues that he could not
have traveled with his Brazilian passport because doing so would have jeopardized
his pending immigration application in the United States. This makes clear that
Baptista did not want to use a legal alternative, not that one did not exist. Baptista
also argues that he could not have traveled with his Brazilian passport because it
had expired in May 2015, prior to the time he felt his children’s harm was
imminent in August 2015. This argument is foreclosed by the fact that Baptista
took steps to obtain a false passport in April 2015.
2. Although Baptista preserved his right to appeal the denial of his
necessity-defense motion and to challenge the voluntariness of his guilty plea,
Baptista waived his other appellate rights. We read “general waivers of the right to
appeal to cover . . . an appeal from the denial of a motion to withdraw a guilty
plea.” United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011).
2 Accordingly, we must decide whether Baptista’s waiver is enforceable before we
may consider whether the district court abused its discretion in denying Baptista’s
motion to withdraw his guilty plea. We conclude that Baptista’s waiver became
unenforceable when the district judge advised him, “without qualification, that he
. . . [had] a right to appeal.” United States v. Jeronimo, 398 F.3d 1149, 1153 n.2
(9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo,
496 F.3d 947, 957 (9th Cir. 2007) (en banc). At Baptista’s sentencing hearing, the
district court stated, “[I]f you wish to appeal, you must do so within 14—within
days [sic].” This “unambiguous” statement gave Baptista a “reasonable
expectation” of his right to appeal. United States v. Arias-Espinosa, 704 F.3d 616,
619 (9th Cir. 2012) (internal quotation marks omitted). Compare id. at 618–19
(holding that the statement “you may have a right to appeal” did not affect the
waiver (emphasis added)), and United States v. Aguilar-Muniz, 156 F.3d 974, 977
(9th Cir. 1998) (holding that the statement “if you believe the waiver is
unenforceable, you can present that theory to the appellate court” did not affect the
waiver (emphasis added)), and United States v. Schuman, 127 F.3d 815, 817 (9th
Cir. 1997) (holding that the statement “It’s up to the Ninth Circuit to decide
whether under the circumstances [the defendant has] lost his right of appeal” did
not affect the waiver), with United States v. Buchanan, 59 F.3d 914, 917–18 (9th
Cir. 1995) (holding that the statement “you have the right to appeal” rendered the
3 waiver unenforceable (emphasis added)).
Having concluded that Baptista’s waiver is unenforceable, we turn to the
district court’s denial of Baptista’s motion to withdraw his guilty plea. Baptista
moved to withdraw his guilty plea after learning that his wife was the
government’s original source of information and that she received relocation
assistance in connection with the investigation.
A defendant “should be freely allowed” to withdraw a guilty plea before
sentencing if he “can show a fair and just reason for requesting the withdrawal.”
United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009) (quoting Fed. R.
Crim. P. 11(d)(2)(B)). When a defendant’s reason for withdrawing a guilty plea is
new evidence, the district court should consider whether the evidence is actually
new. See id. And in determining whether the new evidence provides a fair and
just reason for withdrawal, the district court should ask whether the new evidence
could have motivated a defendant not to plead guilty. See id. The district court
may not, however, require the defendant to “show that his motion will be
successful on its merits.” United States v. McTiernan, 546 F.3d 1160, 1168 (9th
Cir. 2008).
First, the district court failed to make any findings as to the novelty of this
evidence, stating that it “[wasn’t] persuaded by Baptista’s characterization of this
purportedly ‘new’ evidence.” As the government has conceded that it had not
4 disclosed that Baptista’s wife was its original source or that it had provided her
relocation assistance until after his guilty plea, it is uncontroverted that this
evidence was “unknown to the defense at the time of the plea.” United States v.
Garcia, 401 F.3d 1008, 1010 n.2 (9th Cir. 2005). The district court therefore erred
in doubting the newness of the evidence.
Second, the district court misapplied the fair-and-just-reasons standard in
denying Baptista’s motion. See id. at 1011. The district court determined that
“several of Baptista’s purported [new] defenses” were “foreclose[d]” (1) because
“Baptista’s wife voluntarily reported his criminal conduct” and (2) due to the
absence of evidence showing that his wife “acted as a government agent.” But this
goes to the merits of Baptista’s claims. The proper inquiry before the court was
whether the new evidence could have motivated Baptista not to plead guilty, not
whether he was likely to succeed on the merits of his new defenses. McTiernan,
546 F.3d at 1168.
Moreover, in concluding that the new evidence would not have motivated
Baptista not to plead guilty, the district court relied on the fact that the defenses the
new evidence allegedly supported “ha[d] little or no bearing on his guilt or
innocence.” This conclusion was improper: evidence that provides a defendant
with defenses that do not go to his guilt or innocence may nonetheless motivate a
defendant not to plead guilty. See United States v. Ortega-Ascanio, 376 F.3d 879,
5 885 (9th Cir. 2004); cf. McTiernan, 546 F.3d at 1168.
We therefore conclude that the district court abused its discretion in denying
Baptista’s motion to withdraw his guilty plea. See Ortega-Ascanio, 376 F.3d at
883. We vacate the judgment of conviction, set aside the guilty plea, and remand
for further proceedings consistent with this disposition.
The government shall bear the costs of this appeal.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
6 United States v. Baptista, No. 17-50176 FILED OWENS, Circuit Judge, dissenting: JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I respectfully dissent. I believe the district court’s statements during
sentencing regarding the defendant’s right to appeal were akin to those in United
States v. Arias-Espinosa, 704 F.3d 616, 618–19 (9th Cir. 2012), so the appellate
waiver remands valid. And with a valid appellate waiver, the defendant cannot
challenge the district court’s denial of his motion to withdraw his plea. See United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011).