[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 96-2285
UNITED STATES,
Appellee,
v.
JOHN PATTI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
John Patti on brief pro se.
Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant United States Attorney, on Motion for Summary Disposition for appellee.
May 2, 1997
Per Curiam. Pursuant to a written plea agreement,
defendant John J. Patti pled guilty to a one count indictment
charging him with conspiracy to commit access device (credit
card) fraud by knowingly and intentionally using a
counterfeit credit card, in violation of 18 U.S.C. 371, and
1029(a)(1). He was sentenced to 18 months' imprisonment.
On appeal he seeks for the first time to withdraw
his guilty plea. To prevail on this "afterthought ground" a
defendant must show a "substantial defect" in the record of
the Rule 11 proceeding itself. United States v. Piper, 35
F.3d 611 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118
(1995); see also United States v. Noriega-Millan, -- F.3d ---
, 1997 WL 151202 *4 & n.4 (1st Cir. Apr. 7, 1997).1 This he 1
has not done.
Patti claims that his plea was involuntary because
he did not understand the "true nature of the elements of the
crime charged in the indictment." He alleges that there was
an insufficient factual basis for his plea, that his attorney
failed to explain the charge to him, and the court
mischaracterized the charged crime.
The record contradicts these assertions. Patti was
advised by the Court, in plain and understandable terms, of
1An appellant faces a "high hurdle" when he seeks to set 1 aside a guilty plea for the first time on appeal, although the contours of the burden are "somewhat cloudy." Noriega-
Millan, -- F.3d ---, 1997 WL 151202 *6 n.4 (citations
omitted). We need not reach that issue here.
-2-
the elements of the offense. True, in addition to telling
Patti
that he was charged with conspiring to use a particular
"counterfeit" card, the court also defined the term
"unauthorized" card. "Unauthorized" has a different
statutory meaning from "counterfeit," see 18 U.S.C.
1029(e)(2)(3), and use of an "unauthorized" card is
criminalized in a separate subsection of the law. See 18
U.S.C. 1029(a)(2). The two subsections carry different
maximum penalties, but the crime to which Patti actually pled
guilty -- conspiracy to commit another offense, see 18 U.S.C.
371 -- carries a maximum five-year penalty regardless of
whether the object offense is defined in subsection (a)(1) or
in subsection (a)(2) of 18 U.S.C. 1029.
The "totality" of the hearing record, however,
reveals no misunderstanding as to the charge. United States
v. Martinez-Martinez, 69 F.3d 1215, 1222 (1st Cir.), cert.
denied, 116 S. Ct. 1343 (1995). The elements of the crime
were reiterated at the hearing by the government prosecutor,
whose offer of proof emphasized that the card fit the
definition of "counterfeit" because it had been altered.2 2
The definition of a "counterfeit access device," expressly
2The name, account number and bank imprinted on the face 2 of the card did not match the information encoded on the card's magnetic stripe.
-3-
including any component that is "counterfeit, fictitious,
altered, or forged," was fully set forth in the written plea
agreement. Patti signed the agreement, and certified his
understanding of its terms.
Under oath at the plea hearing, Patti said that he
understood the charge, his attorney said that he had reviewed
each paragraph of the indictment and the plea agreement with
Patti, and Patti swore that he was fully satisfied with his
attorney's representation and advice. Any error in the
district court's explanation thus was harmless. United
States v. Buckley, 847 F.2d 991, 1000 n.11 (1st Cir. 1988),
cert. denied, 488 U.S. 1015 (1989); see also United States v.
Japa, 994 F.2d 899, 902 (1st Cir. 1993). Even if, as Patti
now belatedly claims, he personally did not understand a
legal nuance, an informed plea based on competent counsel's
advice3 is acceptable in the circumstances of this case. 3
Allard v. Helgemoe, 572 F.2d 1, 6 (1st Cir.), cert. denied,
439 U.S. 858 (1978); see also Nelson v. Callahan, 721 F.2d
397, 401 (1st Cir. 1983).
Patti also now claims that there was an
insufficient factual basis for his plea because he did not
3If Patti now wishes to offer extra-record facts to prove 3 otherwise, he must initiate a collateral proceeding under 28 U.S.C. 2255. Noriega-Millan, -- F.3d --, 1997 WL 151202 *6
n.3. We caution, however, that ordinarily a defendant will not be heard, even in a collateral proceeding, to controvert his own sworn Rule 11 statements. See United States v. Butt,
731 F.2d 75, 80 (1st Cir. 1984).
-4-
know that the card specified in the indictment was
counterfeit. The record reflects, however, that Patti
admitted to the probation officer that when he joined the
conspiracy he knew its breadth. He knew it was a "complete,"
on-going, "stolen credit card scam," replete with a
designated "fence." Indeed, six credit cards, all of which
were once valid, but subsequently traded, sold, or stolen and
reprogrammed, were found in Patti's rented automobile. He
admitted knowing that he had no right to use the card
specified in the indictment, and assumed it was "stolen."
The only ignorance he claimed was of the fact that the card
was "all rigmaroled like . . . they say."
True, a "conspiracy to commit a particular
substantive offense cannot exist without at least the degree
of criminal intent necessary for the substantive offense
itself." Ingram v. United States, 360 U.S. 672 (1959); see
also Piper, 35 F.3d at 614 (explaining that a conspirator
must have intended both to agree and to effectuate the
commission of the substantive offense). We need not decide
here, however, how much technological knowledge may be
imputed to a conspirator who has admittedly conspired to use
an illicit access device.
The hearing record reflects a factual basis for
doubting the reliability of Patti's self-professed ignorance
that the card was altered, and a rational reason for
-5-
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[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 96-2285
UNITED STATES,
Appellee,
v.
JOHN PATTI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
John Patti on brief pro se.
Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant United States Attorney, on Motion for Summary Disposition for appellee.
May 2, 1997
Per Curiam. Pursuant to a written plea agreement,
defendant John J. Patti pled guilty to a one count indictment
charging him with conspiracy to commit access device (credit
card) fraud by knowingly and intentionally using a
counterfeit credit card, in violation of 18 U.S.C. 371, and
1029(a)(1). He was sentenced to 18 months' imprisonment.
On appeal he seeks for the first time to withdraw
his guilty plea. To prevail on this "afterthought ground" a
defendant must show a "substantial defect" in the record of
the Rule 11 proceeding itself. United States v. Piper, 35
F.3d 611 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118
(1995); see also United States v. Noriega-Millan, -- F.3d ---
, 1997 WL 151202 *4 & n.4 (1st Cir. Apr. 7, 1997).1 This he 1
has not done.
Patti claims that his plea was involuntary because
he did not understand the "true nature of the elements of the
crime charged in the indictment." He alleges that there was
an insufficient factual basis for his plea, that his attorney
failed to explain the charge to him, and the court
mischaracterized the charged crime.
The record contradicts these assertions. Patti was
advised by the Court, in plain and understandable terms, of
1An appellant faces a "high hurdle" when he seeks to set 1 aside a guilty plea for the first time on appeal, although the contours of the burden are "somewhat cloudy." Noriega-
Millan, -- F.3d ---, 1997 WL 151202 *6 n.4 (citations
omitted). We need not reach that issue here.
-2-
the elements of the offense. True, in addition to telling
Patti
that he was charged with conspiring to use a particular
"counterfeit" card, the court also defined the term
"unauthorized" card. "Unauthorized" has a different
statutory meaning from "counterfeit," see 18 U.S.C.
1029(e)(2)(3), and use of an "unauthorized" card is
criminalized in a separate subsection of the law. See 18
U.S.C. 1029(a)(2). The two subsections carry different
maximum penalties, but the crime to which Patti actually pled
guilty -- conspiracy to commit another offense, see 18 U.S.C.
371 -- carries a maximum five-year penalty regardless of
whether the object offense is defined in subsection (a)(1) or
in subsection (a)(2) of 18 U.S.C. 1029.
The "totality" of the hearing record, however,
reveals no misunderstanding as to the charge. United States
v. Martinez-Martinez, 69 F.3d 1215, 1222 (1st Cir.), cert.
denied, 116 S. Ct. 1343 (1995). The elements of the crime
were reiterated at the hearing by the government prosecutor,
whose offer of proof emphasized that the card fit the
definition of "counterfeit" because it had been altered.2 2
The definition of a "counterfeit access device," expressly
2The name, account number and bank imprinted on the face 2 of the card did not match the information encoded on the card's magnetic stripe.
-3-
including any component that is "counterfeit, fictitious,
altered, or forged," was fully set forth in the written plea
agreement. Patti signed the agreement, and certified his
understanding of its terms.
Under oath at the plea hearing, Patti said that he
understood the charge, his attorney said that he had reviewed
each paragraph of the indictment and the plea agreement with
Patti, and Patti swore that he was fully satisfied with his
attorney's representation and advice. Any error in the
district court's explanation thus was harmless. United
States v. Buckley, 847 F.2d 991, 1000 n.11 (1st Cir. 1988),
cert. denied, 488 U.S. 1015 (1989); see also United States v.
Japa, 994 F.2d 899, 902 (1st Cir. 1993). Even if, as Patti
now belatedly claims, he personally did not understand a
legal nuance, an informed plea based on competent counsel's
advice3 is acceptable in the circumstances of this case. 3
Allard v. Helgemoe, 572 F.2d 1, 6 (1st Cir.), cert. denied,
439 U.S. 858 (1978); see also Nelson v. Callahan, 721 F.2d
397, 401 (1st Cir. 1983).
Patti also now claims that there was an
insufficient factual basis for his plea because he did not
3If Patti now wishes to offer extra-record facts to prove 3 otherwise, he must initiate a collateral proceeding under 28 U.S.C. 2255. Noriega-Millan, -- F.3d --, 1997 WL 151202 *6
n.3. We caution, however, that ordinarily a defendant will not be heard, even in a collateral proceeding, to controvert his own sworn Rule 11 statements. See United States v. Butt,
731 F.2d 75, 80 (1st Cir. 1984).
-4-
know that the card specified in the indictment was
counterfeit. The record reflects, however, that Patti
admitted to the probation officer that when he joined the
conspiracy he knew its breadth. He knew it was a "complete,"
on-going, "stolen credit card scam," replete with a
designated "fence." Indeed, six credit cards, all of which
were once valid, but subsequently traded, sold, or stolen and
reprogrammed, were found in Patti's rented automobile. He
admitted knowing that he had no right to use the card
specified in the indictment, and assumed it was "stolen."
The only ignorance he claimed was of the fact that the card
was "all rigmaroled like . . . they say."
True, a "conspiracy to commit a particular
substantive offense cannot exist without at least the degree
of criminal intent necessary for the substantive offense
itself." Ingram v. United States, 360 U.S. 672 (1959); see
also Piper, 35 F.3d at 614 (explaining that a conspirator
must have intended both to agree and to effectuate the
commission of the substantive offense). We need not decide
here, however, how much technological knowledge may be
imputed to a conspirator who has admittedly conspired to use
an illicit access device.
The hearing record reflects a factual basis for
doubting the reliability of Patti's self-professed ignorance
that the card was altered, and a rational reason for
-5-
calculating that his own interests would be best served by a
guilty plea. See North Carolina v. Alford, 400 U.S. 25
(1970). An informed and calculated plea based on competent
counsel's advice about the wisdom of pleading guilty or going
to trial is all that is required. Allard, 572 F.2d at 6.
As to Patti's remaining challenges to the sentence:
(1) We see no "clear error" in the district
court's decision to increase Patti's guideline sentencing
range by two levels for "more than minimal planning," under
USSG 2F1.1(b)(2). Ample record evidence supports the
court's finding that Patti's participation in the conspiracy
was not a "spur of the moment" crime, but the product of more
than minimal planning. United States v. Gregorio, 956 F.2d
341, 343 (1st Cir. 1992). In addition to Patti's two known
uses of the counterfeit card on the day he was arrested, the
other five illicit cards were found concealed in the panels
of an automobile which he had rented two weeks earlier. See
USSG 1B1.1 comment (n.1(f)).
(2) There is also no support for Patti's argument,
raised for the first time on appeal, that the enhancement for
"more than minimal planning" somehow violated the plea
agreement or Patti's understanding of the plea agreement, and
required the court to sua sponte offer Patti an opportunity
to withdraw his guilty plea.
-6-
The plea agreement expressly was made subject to
Fed. R. Crim. P. 11(e)(1)(B), and the Sentencing Guidelines.
Before entering his guilty plea, Patti was unequivocally
informed by the court that he would not be permitted to
withdraw the plea except in one circumstance. "If I do not
accept the [$2,000 fraud loss] stipulation, Mr. Patti, I will
allow you to withdraw your plea of guilty if you choose to do
so, however, you will not be allowed to withdraw your plea
for any other reason; do you understand?" Patti said that he
understood. Accordingly, the judgment of the
district court is affirmed.
-7-