United States v. Parrilla Tirado

• Court: Court of Appeals for the First Circuit
• Decided: April 28, 1994
• Docket: 93-1228
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-1228

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                               LUIS E. PARRILLA-TIRADO,

                                Defendant, Appellant.

                              __________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
                                          __________________________

                              __________________________

                                        Before

                                Selya, Circuit Judge, 
                                       _____________

                            Bownes, Senior Circuit Judge, 
                                    ____________________

                               and Cyr, Circuit Judge.
                                        _____________

                              __________________________

               Lydia Lizarribar-Masini for appellant.
               _______________________
               Ernesto Hernandez-Milan, Assistant  United States  Attorney,
               _______________________
          with  whom  Guillermo Gil,  United States  Attorney, and  Jose A.
                      _____________                                 _______
          Quiles-Espinosa, Senior  Litigation Counsel,  were on brief,  for
          _______________  __________________________
          appellee.

                              __________________________

                                    April 28, 1994     

                              __________________________

SELYA,  Circuit Judge.    Having  rethought his  guilty
                    SELYA,  Circuit Judge.
                            _____________

          plea,  defendant-appellant  Luis  E.  Parrilla-Tirado  (Parrilla)

          moved to  withdraw it pursuant  to Fed. R.  Crim. P. 32(d).   The

          district court denied the motion and thereafter imposed sentence.

          Parrilla appeals.  We affirm.

          I.  PROCEEDINGS BELOW
          I.  PROCEEDINGS BELOW

                    On April 24, 1991, appellant and  a companion, Angel M.

          Concepcion-Roberto  (Concepcion), were apprehended  after a high-

          speed chase.  The  authorities discovered a firearm on  the front

          passenger seat  of their  car.1  On  September 18, 1991,  a grand

          jury returned a two-count indictment.   Count 1 charged appellant

          with  violating 18  U.S.C.    922(g)(1)  (1988),  a statute  that

          renders it unlawful for a convicted felon, among other things, to

          "transport  in interstate or  foreign commerce, or  possess in or

          affecting  commerce, any  firearm," and  also charged  Concepcion

          with assisting the crime's commission in  violation of the aiding

          and abetting statute, 18 U.S.C.   2(a) (1988).   Count 2 reversed

          the  defendants'   roles,  charging  that   Concepcion  knowingly

          transported and/or possessed the  firearm in violation of section

          922(g)(1), and that appellant aided and abetted him.

                    Appellant was  arraigned before  a magistrate judge  in

          February  of   1992.    Notwithstanding  the   structure  of  the

          indictment,  the   Assistant   United  States   Attorney   (AUSA)

          inexplicably  told  the  magistrate  that   appellant  was  being

____________________

               1The record  reflects that  Concepcion had been  driving the
          vehicle and that appellant had occupied the front passenger seat.

                                          2

prosecuted exclusively on count  1.  Consequently, the magistrate

          arraigned appellant only on that count.  He pled not guilty.

                    Four   months   later,   appellant,  through   counsel,

          negotiated a non-binding plea  agreement with the government, see
                                                                        ___

          Fed. R. Crim. P. 11(e)(1)(A), under  which he agreed to admit his

          guilt  on count 1 and the  government agreed to seek dismissal of

          the charge  leveled against him in  count 2.  In  due course, the

          district  court allowed appellant's change of plea.  In September

          1992, the probation office compiled and delivered the presentence

          investigation  report (PSI  Report).   In December,  after having

          been  afforded  an  opportunity  to scrutinize  the  PSI  Report,

          appellant  moved to withdraw his plea.  The district court denied

          the  motion, primarily  on the  ground that  appellant's asserted

          reasons lacked  "force and  plausibility."  Soon  thereafter, the

          court sentenced appellant on count 1 and dismissed count 2.

                    Appellant  now  asserts that  no  consideration existed

          within  the  plea  bargain  to  support  the  guilty  plea,  and,

          therefore, that he should have been allowed to withdraw it.  This

          assertion rests  on two theses:   (1) that the AUSA  indicated at

          arraignment  that count 2 did not involve appellant; and (2) that

          the  two  counts  were,   in  all  events,  multiplicitous,  and,

          consequently, pleading  guilty to one count  effectively disposed

          of the other.

          II.  ANALYSIS
          II.  ANALYSIS

                    We first set in place the framework under which motions

          to  withdraw pleas  must  be  analyzed,  and  then  turn  to  the

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specifics of appellant's asseverational array.

                                  A.  The Framework.
                                  A.  The Framework.
                                      _____________

                    Trial judges  are the  judiciary's infantry:   they man

          the front lines  and, therefore, possess special insight into the

          dynamics of the  cases over which they preside.   In deference to

          that insight, we review the district court's decision to grant or

          deny a  request to  withdraw a  guilty plea solely  for abuse  of

          discretion.  See  United States v. Doyle, 981 F.2d  591, 594 (1st
                       ___  _____________    _____

          Cir.  1992); United States v. Pellerito, 878 F.2d 1535, 1538 (1st
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          Cir. 1989).

                    Although  a motion  to  withdraw a  guilty plea  before

          sentencing  is determined under a less  stringent standard than a

          motion made after sentencing, see Fed. R. Crim. P. 32(d) advisory
                                        ___

          committee's note, a defendant does not have an automatic right to

          withdraw his plea even  at that comparatively early stage.   See 
                                                                       ___

          United  States v.  Buckley, 847  F.2d 991,  998 (1st  Cir. 1988),
          ______________     _______

          cert.  denied, 488 U.S.  1015 (1989); United  States v. Kobrosky,
          _____  ______                         ______________    ________

          711 F.2d 449, 454 (1st  Cir. 1983).  Rather, such a motion can be

          granted before  sentencing only upon an affirmative  showing of a

          "fair and  just reason."  Fed. R. Crim. P.  32(d).  The devoir of

          persuasion as to  the existence of such  a reason rests  with the

          defendant.   See United States  v. Gonzalez, 970  F.2d 1095, 1100
                       ___ _____________     ________

          (2d  Cir. 1992);  see  also  Fed.  R.  Crim.  P.  32(d)  advisory
                            ___  ____

          committee's note.

                    To gauge  whether  the asserted  ground for  withdrawal

          meets the Rule 32(d)  standard, a court must look  at the overall

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situation, most  prominently (1) the plausibility  of the reasons

          prompting the requested  change of  plea; (2) the  timing of  the

          defendant's  motion;  (3) the  existence  or  nonexistence of  an

          assertion  of innocence; and (4) whether, when viewed in light of

          emergent circumstances, the defendant's plea appropriately may be

          characterized as involuntary,  in derogation of  the requirements

          imposed  by Fed. R. Crim.  P. 11,2 or  otherwise legally suspect.

          See  Doyle, 981 F.2d  at 594; Pellerito,  878 F.2d at  1537.  And
          ___  _____                    _________

          there is  a final  barrier that  must be surmounted:   even  if a

          defendant appears at first  blush to meet the strictures  of this

          four-part  test, the  nisi prius  court still  must evaluate  the
                                ____ _____

          proposed  plea   withdrawal  in  relation   to  any  demonstrable

          prejudice  that will accrue to the government if the defendant is

          permitted to  alter  his stance.   See  Doyle, 981  F.2d at  594;
                                             ___  _____

          Pellerito, 878 F.2d at 1537.
          _________

                             B.  Applying the Framework.
                             B.  Applying the Framework.
                                 ______________________

                    We  run  the gauntlet  of relevant  factors, discussing

          them in sequence.

                    1.  Plausibility of the Asserted Reasons.  A  defendant
                    1.  Plausibility of the Asserted Reasons.
                        ____________________________________

          bent on withdrawing  a guilty plea ordinarily  must demonstrate a

          plausible reason for  doing so.  See United States v. Tilley, 964
                                           ___ _____________    ______

          F.2d 66, 72 (1st Cir. 1992).   In this context, plausibility must
                              
          ____________________

               2Three facets of  Rule 11 are  especially important in  this
          respect.   Rule 11(c) prescribes, in exquisite detail, the advice
          that a court must give  to a defendant who indicates a  desire to
          enter  a  guilty plea.   Rule  11(d)  prescribes a  procedure for
          ensuring  that any  plea  is voluntary  in  nature.   Rule  11(e)
          outlines  a series  of  safeguards referable  to plea  agreements
          between accuser and accused.

                                          5

rest on more than the defendant's second thoughts about some fact

          or point of  law, see  United States v.  Nichols, 986 F.2d  1199,
                            ___  _____________     _______

          1203  (8th Cir.  1993),  or  about  the  wisdom  of  his  earlier

          decision, see United  States v.  Austin, 948 F.2d  783, 787  (1st
                    ___ ______________     ______

          Cir. 1991).  We do not think that either of appellant's proffered

          reasons can vault this hurdle.

                    a.  Refined to bare essence, appellant's flagship claim
                    a.

          is that, because the  government did not intend to  prosecute him

          under count  2, he received nothing of  value in exchange for his

          plea  to count  1.   This argument  prescinds from  a presentable

          premise:  after all, we frequently have said that plea agreements

          are contractual in nature.   See, e.g., United States  v. Atwood,
                                       ___  ____  _____________     ______

          963 F.2d 476, 479  (1st Cir. 1992); United  States v. Hogan,  862
                                              ______________    _____

          F.2d 386,  389 (1st Cir.  1988).   But this analogy  can only  be

          carried  so far.  Any time a defendant pleads guilty, he receives

          some built-in benefits,  cf., e.g.,  Corbitt v.  New Jersey,  439
                                   ___  ____   _______     __________

          U.S. 212,  224 n.14 (1978) (discussing  leniency usually accorded

          to  defendants who  plead guilty  as opposed  to those  who stand

          trial); U.S.S.G.   3E1.1 (making available  reduction in  offense

          level  for acceptance  of  responsibility), and  so  long as  the

          government does not make  a material misrepresentation, renege on

          a promise, or breach the plea agreement, see, e.g., Santobello v.
                                                   ___  ____  __________

          New York,  404 U.S. 257, 262  (1971), we do not  believe that any
          ________

          further consideration is essential to support a guilty plea.

                    In any  event, appellant  received the full  benefit of

          his  bargain in this case.  The indictment made manifest, and the

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plea  agreement confirmed,  the grand  jury's decision  to charge

          appellant with two crimes,  not one.  Although appellant  had not
                         ___

          been arraigned on count 2,  that was a matter of mere  mechanics.

          He  could have  been arraigned,  and, ultimately,  prosecuted, at

          virtually any time.3  Thus, count  2 remained a viable option and

          the   dismissal  of   it  benefitted  appellant.     Accordingly,

          appellant's  first asserted  reason for  seeking to  withdraw his

          plea lacks force.

                    b.   As an  alternative reason, appellant  asserts that
                    b.

          the dismissal of count 2 did not amount to valuable consideration

          because the two counts  of the indictment in reality  comprised a

          single charge.  This assertion mischaracterizes the components of

          the indictment and the relationship of the counts inter sese.
                                                            _____ ____

                    We do not dispute the  basic proposition on which  this

          assertion is founded.   Indeed,  it is apodictic  that no  person

          shall  "be subject  for  the  same offence  to  be  twice put  in

          jeopardy of life or limb."  U.S. Const.,  amend. V.  To this end,

          the  Double Jeopardy  Clause shields  a defendant  from a  second

          prosecution for the same  offense after either an acquittal  or a

          conviction,  and   also  shields   a   defendant  from   multiple
                              
          ____________________

               3To  be sure, an overlong period of delay between indictment
          and   arraignment  might   vitiate  the   prospects  for   future
          prosecution.  See U.S.  Const. amend. VI; see also  United States
                        ___                         ___ ____  _____________
          v. Mala, 7  F.3d 1058, 1061 (1st Cir. 1993).  But the delay here,
             ____
          as of the time  appellant negotiated the plea agreement,  was not
          overly  protracted.   And  in any  event,  even an  extraordinary
          period of delay in arraigning  a defendant does not automatically
          annul  an indictment, but merely  serves, if and  when raised, to
          trigger an analysis of relevant factors that eventually  may lead
          to a  dismissal of the charge.   See, e.g., Barker  v. Wingo, 407
                                           ___  ____  ______     _____
          U.S. 514, 530 (1972); Mala, 7 F.3d at 1062 n.3.
                                ____

                                          7

punishments for the same offense.  See Jones v. Thomas, 491  U.S.
                                             ___ _____    ______

          376, 380-81  (1989); United  States v. Rivera-Martinez,  931 F.2d
                               ______________    _______________

          148, 152 (1st Cir.), cert. denied,  112 S. Ct. 184 (1991).  Thus,
                               _____ ______

          an indictment may be regarded as repugnant to the Double Jeopardy

          Clause  if it  charges a  single offense  in more  than a  single

          count.  See  United States v. Lilly, 983 F.2d  300, 302 (1st Cir.
                  ___  _____________    _____

          1992).

                    The  Supreme   Court  has  spoken  to   this  topic  in

          unambiguous terms:

                    The applicable rule  is that  where the  same
                    act or transaction constitutes a violation of
                    two distinct statutory  provisions, the  test
                    to be applied to  determine whether there are
                    two  offenses or  only  one, is  whether each
                    provision requires proof of  a fact which the
                    other does not.

          Blockburger  v. United  States, 284  U.S. 299,  304 (1932).   If,
          ___________     ______________

          applying the  Blockburger test,  the crimes charged  are discrete
                        ___________

          offenses, the defendant may be prosecuted  for both offenses even

          though they  arise out of  the same  conduct, but  if the  crimes

          charged have  the same elements, or  if one is  a lesser included

          offense of the other, double jeopardy  at some point will bar the

          door.   See United States v.  Dixon, 113 S. Ct.  2849, 2857, 2860
                  ___ _____________     _____

          (1993); United  States v. Colon-Osorio,  10 F.3d  41, 45-46  (1st
                  ______________    ____________

          Cir. 1993).

                    Under Blockburger, appellant's claim fails.  Count 1 of
                          ___________

          the indictment  requires a  showing that appellant,  after having

          been convicted of a felony, transported  or possessed the firearm

          discovered by  the police.  See  18 U.S.C.   922(g)(1).   Count 2
                                      ___

8

requires a  showing that  Concepcion, rather than  appellant, had

          been convicted  of a prior  felony, that Concepcion,  rather than

          appellant, knowingly transported  or possessed  the firearm,  and

          that appellant, rather  than Concepcion, aided  and abetted.   On

          the allegations contained in that count, appellant could not have

          been  convicted  under  section  922(g)(1), but  only  under  the

          separate aiding and abetting statute, 18 U.S.C.   2(a).  Plainly,

          then, the elements of  the two offenses are distinct  rather than

          identical.   Hence, there is  no multiplicitousness.   See Colon-
                                                                 ___ ______

          Osorio, 10 F.2d at 45.
          ______

                    2.    Timing.   The timing  of a  motion to  withdraw a
                    2.    Timing.
                          ______

          guilty  plea is  significant.   Delayed  requests,  even if  made

          before  sentencing, are  generally regarded  with disfavor.   See
                                                                        ___

          Pellerito,  878 F.2d  at 1541.   The  rule of  thumb is  that the
          _________

          longer  a defendant waits before moving to withdraw his plea, the

          more  potency his  motion must  have in  order to  gain favorable

          consideration.  See Doyle, 981 F.2d at 595.
                          ___ _____

                    In  this  case,  appellant  waited  roughly six  months

          before he moved to withdraw his plea.  And, moreover, his belated

          change  of  heart followed  not  long after  the  PSI Report    a

          document which contained, inter alia, information suggesting that
                                    _____ ____

          a stiff sentence loomed    arrived at the court's doorstep.4   In

          appellant's case, then, a simple  chronology of events serves  to
                              
          ____________________

               4The PSI  Report not  only suggested a  guideline sentencing
          range of 188-235 months,  but also indicated that grounds  for an
          upward  departure might  exist.   Appellant  filed his  motion to
          withdraw shortly after  having had an opportunity to  examine the
          report.

                                          9

cast a long shadow  over the legitimacy of his  professed reasons

          for  seeking  to  change  course.    Courts  need  not  accept  a

          defendant's  explanations  uncritically.   See generally   United
                                                     ___ _________   ______

          States v. O'Brien, 14 F.3d 703, 708 (1st Cir. 1994) (reminding us
          ______    _______

          that "[t]here are limits to coincidence").

                    3.   Claim  of  Innocence.   In  determining whether  a
                    3.   Claim  of  Innocence.
                         ____________________

          proposed  plea  withdrawal  is   fair  and  just,  a  defendant's

          assertion  of  innocence  may  weight  the  scales  in  favor  of

          withdrawal, and conversely,  the absence of a  claim of innocence

          weights  the opposite pan of the scales.   See Doyle, 981 F.2d at
                                                     ___ _____

          596; Kobrosky, 711  F.2d at  455.  Appellant  derives no  comfort
               ________

          from this  tenet.  In his  motion papers, he did  not profess his

          innocence.    Thus, this  factor  cuts  sharply against  allowing

          appellant's motion to withdraw his guilty plea.

                    4.  Other Considerations.  Other considerations can, of
                    4.  Other Considerations.
                        ____________________

          course,  influence  whether  a  defendant should  be  allowed  to

          withdraw   a  guilty  plea.     Here,  however,   we  discern  no

          miscellaneous considerations that counsel in favor  of permitting

          appellant  to withdraw  his plea.   To  the contrary,  the record

          discloses that appellant entered  the plea voluntarily, with full

          knowledge of the  terms of  the plea agreement,  see Austin,  948
                                                           ___ ______

          F.2d  at 787, and under  circumstances wherein the plea evidenced

          an intentional relinquishment of a known right.

                    Furthermore,   despite   the  AUSA's   misstatement  at

          arraignment, the key facts were at  appellant's disposal from the

          very  outset.  The indictment itself was crystal clear.  The plea

10

agreement was  pellucid in  its  description of  the two  counts.

          Then, too, the  court explained matters fully  during the change-

          of-plea  hearing   and  appellant  assured  the   court  that  he

          understood  both  the agreement  (which  he had  signed)  and the

          consequences of the ensuing plea.  He also assured the court that

          he entered into  the plea and the plea agreement  of his own free

          will.

                    We will  not paint the lily.   It is the  policy of the

          law to  hold litigants to  their assurances.   As we wrote  in an

          analogous case, "[w]e  will not  permit a defendant  to turn  his

          back  on his own representations  to the court  merely because it

          would  suit his convenience  to do so."   Pellerito, 878  F.2d at
                                                    _________

          1539.  So it is here.

          III.  CONCLUSION
          III.  CONCLUSION

                    We need go no  further.5  Given reasons for  withdrawal

          that are lacking in plausibility, an  extended time lapse between

          the original plea and the motion to withdraw, the  absence of any

          assertion of innocence, the district court's scrupulous adherence

          to the  dictates of Rule  11, and  the totality of  the attendant

          circumstances, we  discern no  hint of  discretion abused  in the

          court's refusal to permit appellant to withdraw his  guilty plea.

          To be blunt, appellant had no entitlement to a second bite of the

          fig   and we will not afford him one.

____________________

               5Because appellant has utterly failed to  present a fair and
          just reason  for plea withdrawal,  we need  not discuss  possible
          prejudice to  the government.   See Doyle, 981  F.2d at 596  n.6;
                                          ___ _____
          Buckley, 847 F.2d at 998 n.5.
          _______

                                          11

Affirmed.
          Affirmed.
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