United States v. Skerret-Ortega

• Court: Court of Appeals for the First Circuit
• Decided: June 13, 2008
• Docket: 06-1125
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 06-1126

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ SKERRET-ORTEGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge, Torruella, Circuit Judge, and Selya, Senior Circuit Judge.

Rafael F. Castro-Lang, for appellant. Ernesto López-Soltero, Assistant United States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez- Sosa, Assistant United States Attorney, Chief, Appellate Division, and Germán A. Rieckehoff, Assistant United States Attorney, were on brief for appellee.

June 13, 2008 TORRUELLA, Circuit Judge. José Skerret-Ortega

("Skerret") was indicted along with six co-defendants for

conspiracy to possess with the intent to distribute in excess of

five kilograms of cocaine, one kilogram of heroin, fifty grams of

cocaine base (crack), and a detectable amount of marijuana in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Skerret

attempted to enter a guilty plea twice; the district court rejected

his pleas, and a jury convicted him. On appeal, Skerret argues

that the district court improperly rejected his guilty plea,

improperly admitted certain evidence, that the Government made

improper references during closing arguments, and that he had

ineffective assistance of counsel. After careful consideration, we

affirm the district court's denial of Skerret's attempted guilty

pleas and affirm the conviction.

I. Background

Between 1995 and 2002, Skerret was part of a group of

individuals who controlled a major drug operation out of the Los

Alamos housing projects in Guaynabo, Puerto Rico. Their drug trade

included cocaine, crack, heroin, and marijuana. Each drug point in

Los Alamos had an owner who, in turn, employed sellers. The

Government presented evidence that Skerret operated a marijuana

drug point; rented a cocaine drug point from José Rivera Santiago;

helped process heroin for drug point owner Danny Camilla; and was

an enforcer for drug point operators at the housing project between

-2- 1997 and 2003. In addition to selling for others at different

points during those years, Skerret sold his own "brand" of

marijuana called "black dot."

Skerret sold about one kilogram of cocaine per month from

his rented drug point. In 1998, Skerret also worked for another

drug point owner, and he processed "green-bag" heroin for him.

Skerret owned a drug point from 1999 to 2003. He also employed

sellers and runners to help with his drug ring.

Skerret carried and used a .357 Magnum revolver and 9 mm

Luger pistol that belonged to Camilla. Skerret also had access to

other semi-automatic weapons. Videotapes in evidence showed

Skerret involved in the weapons and drug trade at Los Alamos on

numerous occasions. Rivera Santiago and Sujeilly Castellano Castro

(a former resident of Los Alamos who regularly witnessed drug

transactions near her apartment) cooperated with the Government and

provided testimony about Skerret's involvement in drug trafficking

at Los Alamos. Skerret had lookout points for detecting police in

the area, used private channel walkie-talkie radios, and had

methods for getting rid of drugs quickly when the need arose. A

watchman was on duty twenty-four hours a day at the entrance of the

housing project; the watchman reported on every vehicle and the

number of occupants as they entered Los Alamos.

Skerret was arrested, and on October 22, 2003, he was

indicted, along with six other co-defendants, for violating 21

-3- U.S.C. §§ 841(a)(1) and (b)(1)(A) for possession with intent to

distribute five kilograms or more of cocaine, fifty grams or more

of crack, one kilogram or more of heroin, and a detectable amount

of marijuana. Skerret originally pleaded not guilty, and on

August 15, 2004, he rejected a plea agreement. On September 12,

2005, both before and after the jury was selected, Skerret

attempted to change his plea to guilty. The district court, after

colloquies, rejected both requests. The jury convicted Skerret on

September 14, 2005, and on December 14, 2005, the district court

sentenced him to 360 months' imprisonment and five years'

supervised release. He now appeals.

II. Discussion

Skerret challenges the district court's rejection of his

guilty pleas, the admission of evidence, and some of the

Government's statements during closing arguments. We do not find

merit in any of these claims and address them in turn below. He

also alleges that he suffered from ineffective assistance of

counsel. Because of an insufficiently developed evidentiary

record, we will not review Skerret's ineffective assistance of

counsel claim; the proper forum is a collateral proceeding under 28

U.S.C. § 2255. See United States v. Woods, 210 F.3d 70, 74 (1st

Cir. 2000).

-4- A. Standard of Review

Skerret failed to object below to the district court's

denial of his change of plea requests, to the admission of certain

evidence, and to impugned closing arguments. We, therefore, review

his claims for plain error. See United States v.

García-Carrasquillo, 483 F.3d 124, 132 (1st Cir. 2007). Review for

plain error encompasses a well-known four-part test. We must

determine whether (1) an error occurred (2) that was clear or

obvious (3) which affected the defendant's substantial rights while

also (4) seriously impairing the fairness, integrity or public

reputation of judicial proceedings. See United States v. Duval,

496 F.3d 64, 84 (1st Cir. 2007).

B. Guilty Pleas

Skerret first attempted to enter a guilty plea before the

jury was empaneled; he attempted a second time immediately

thereafter. Both times, the district court rejected his requests.

Skerret argues that these refusals resulted in a longer term of

imprisonment than the sentence he would have received under a plea.

During Skerret's first attempted change of plea hearing,

the district court asked Skerret why he was pleading guilty. He

said, "well, because I don't know. I mean, the lawyer hasn't told

me." The district court then inquired whether Skerret felt forced

to plead guilty; and he said: "[Y]es." Skerret's attorney then

-5- accepted the court's decision that the case had to go to trial.1

Skerret's acknowledgment that he felt forced to plead guilty is

reason enough for the district court to reject his plea; in fact,

it is required. See Fed. R. Crim. P. 11(b)(2). District courts

must take steps to ensure that defendants are not coerced into

pleading guilty.

During Skerret's second attempt to enter a guilty plea,

the following colloquy took place:

THE COURT: Well, what made you change your view as to whether you were going to plead or not? Because this morning you seemed not ready to plead. And, all of a sudden, we selected a jury and now you are ready to plead. Why the change in less than two or three hours?

SKERRET: Well, with all due respect, Your Honor, I just want this not to be prolonged any more and just to get it over with as soon as possible.

THE COURT: But prolong what?

SKERRET: Well, the process and that I am a head of a household and I would like to be given the opportunity to be with my children.

THE COURT: How do you know that is going to be better that way?

SKERRET: I don't know.

THE COURT: Counsel, frankly, I don't know what to tell you. I do think that the easy way out would be to take his plea. But it seems to me, on the basis of my experience, that this man is not the kind of person that

1 The defendant is represented by different counsel on appeal.

-6- approaches a plea situation, a straight plea, without a plea agreement with full knowledge of consequences. It seems to me - I don't know what is in his mind, I don't know. I can't put a finger on it.

The district court then denied Skerret's request to enter a

straight plea. Skerret argues that the colloquy demonstrates that

the district court failed to articulate any sound reason for

rejecting his plea attempt.

Skerret does not have an absolute right to plead guilty,

and it was within the district court's discretion to reject his

pleas. See Santobello v. New York, 404 U.S. 257, 262 (1971)

(citing Lynch v. Overholser, 369 U.S. 705, 719 (1962) and Fed. R.

Crim. P. 11); In re Arvedon, 523 F.2d 914, 916 (1st Cir. 1975).

The district court must ensure that the defendant is provided with

certain safeguards intended to assure that his rights are

respected. See Santobello, 404 U.S. at 262. Federal Rule of

Criminal Procedure 11 requires the district court to address the

defendant personally to assure that, inter alia, he understands the

charge against him, the possible punishment, his right to an

attorney, his right to plead not guilty, his right to a jury trial,

and that his guilty plea, among other things, waives his right to

a trial. See Fed. R. Crim P. 11(b)(1); United States v.

Ventura-Cruel, 356 F.3d 55, 59 (1st Cir. 2003). The district court

must also ensure that the defendant's plea is voluntary and not the

-7- result of "force, threats, or promises." Fed. R. Crim. P.

11(b)(2); see also Ventura-Cruel, 356 F.3d at 59.

The district court is also required to ascertain whether

there is a factual basis for the defendant's guilty plea. See Fed.

R. Crim. P. 11(b)(3). "The purpose of this requirement is to

'protect a defendant who is in the position of pleading voluntarily

with an understanding of the nature of the charge but without

realizing that his conduct does not actually fall within the

charge.'" Ventura-Cruel, 356 F.3d at 59-60 (citation omitted).

Accordingly, district courts must have "a reasoned basis to believe

that the defendant actually committed the crime to which he is

admitting guilt." United States v. Matos-Quiñones, 456 F.3d 14, 21

(1st Cir. 2006) (citing United States v. Cheal, 389 F.3d 35, 41

(1st Cir. 2004)). Skerret denied any responsibility for the crimes

for which he was charged. When the district court asked defense

counsel why the appellant had changed his mind a few hours after

the first attempt to plead guilty, counsel said that Skerret "has

always denied participation" in the charged crimes. Skerret did

not deny his attorney's statement. Because Skerret denied

participation in the charged offenses, the district court would

have been unable to glean the relevant facts -- even by accepting

the prosecution's version of the evidence. See United States v.

Gandía-Maysonet, 227 F.3d 1, 6 (1st Cir. 2000). The district court

did not err when it refused to accept Skerret's plea.

-8- C. Admission of Evidence and Statements During Trial

1. Documentary Evidence

Skerret argues that the Government presented documents

that should not have been allowed into evidence and were then

impermissibly used during closing arguments by the government. The

first document was the indictment, and the second was Rivera

Santiago's sealed motion requesting a downward departure pursuant

to U.S.S.G. § 5K1.1. Skerret did not object below to either

submission, accordingly, we review for plain error.

The Government asserts that the indictment was introduced

into evidence, not as evidence against Skerret, but to offer some

background on Rivera Santiago, whose cooperation in the case earned

him a reduced sentence. We agree. It is clear from the trial

record that the Government's reference to the indictment, and the

reason for presenting it to the jury, was to show the jury what

Rivera Santiago "did and what he is answering for." Since the

indictment was not introduced into evidence to be considered

against the defendant, subject to a proper instruction, giving the

indictment to the jury for use during deliberations was well within

the trial court's discretion. See United States v. McFarlane, 491

F.3d 53, 60 (1st Cir. 2007) (quoting United States v. Medina, 761

F.2d 12, 21-22 (1st Cir. 1985)).

The district court properly instructed the jury regarding

the indictment. The district court told the jury: "You are going

-9- to have a copy of the indictment for the simple reason that you

have to follow the written word of the charge to figure out whether

it is something that helps you in conducting your deliberations[,]

but the indictment as such is not evidence of anything." The very

last instruction the jury heard before deliberating was: "You will

get a copy of the indictment. As I said before, it serves as the

guideline, if you will, of what it is that the government charged

with the understanding that it is not evidence of guilt or anything

else." The district court did not err.

Likewise, it was not plain error for the court to admit

the § 5K1.1 motion. The purpose of the § 5K.1 motion was to show

the jury that Rivera Santiago had benefitted from cooperating with

the Government and that he had motivation to testify truthfully.

The motion also related to Skerret's main theory, which was that

Rivera Santiago was lying to obtain leniency. We have held that

under these types of circumstances, may be appropriate to introduce

this kind of evidence. See United States v. Hansen, 434 F.3d 92,

101-102 (1st Cir. 2006), cert. denied, 127 S. Ct. 203 (2006) ("'[A]

prosecutor properly may admit a witness's plea agreement into

evidence, discuss the details of the plea during closing arguments,

and comment upon a witness's incentive to testify truthfully.'"

(quoting United States v. Bey, 188 F.3d 1, 7 (1st Cir. 1999)); see

also United States v. Page, 521 F.3d 101, 107 (1st Cir. 2008). In

the absence of an objection, the district court cannot be faulted

-10- for admitting the indictment and the Government's § 5K1.1 motion

into evidence. The Government had a legitimate reason for

admitting the evidence, and Skerret's attempt to distort the

Government's motive fails.2 There was no plain error.

2. Statements During Closing Arguments

Skerret alleges that the Government made improper

statements in its closing. The Government stated:

And when you decide this matter as judges, remember that you will live with the decision of course. You will live with the honest decision that you put a criminal behind bars. Not just left out in the street, another criminal to continue selling drugs next to the kids because you saw they sold regardless of the kids, not even caring for any of those kids, one of them was even giving money to a little child to take God knows where. So when you live with your conscience you will live with your knowledge as judges of the fact you did justice. . . .

The Government also stated: "[Castellano Castro] is an innocent

victim, living in one of our housing projects and having to endure

the trafficking by these individuals."

In the past, we have admonished the Government for making

statements "'calculated to inflame the passions or prejudices of

the jury,'" United States v. Nelson-Rodríguez, 319 F.3d 12, 39 (1st

Cir. 2003) (citation omitted), in an attempt to obtain a

conviction. See Arrieta-Agressot v. United States, 3 F.3d 525, 527

2 Since we hold that it was not plain error to admit the evidence, we need not consider Skerret's claim that it was improper for the Government to refer to the evidence during closing arguments.

-11- (1st Cir. 1993) ("We think it is crystal clear that inflammatory

language of this ilk falls well outside the bounds of permissible

argument."). We continue to believe that:

Cases are to be decided by a dispassionate review of the evidence admitted in court. There should be no suggestion that a jury has a duty to decide one way or the other; such an appeal is designed to stir passion and can only distract a jury from its actual duty: impartiality.

United States v. Mendelbaum, 803 F.2d 42, 44 (1st Cir. 1986).

The statements at issue, however, were made during the

Government's rebuttal in direct response to Skerret's statements.

Skerret's counsel made the following remarks in his closing

arguments: "You are going to live with your decision the rest of

your life. . . . Are you really going to rest the rest of your

lives with the decision you are about to make on a criminal? On a

woman that cannot remember the dates?" The Government's response

to statements made by defendant's counsel cannot and should not be

viewed the same way as statements made by the Government without

provocation. "In [the] context [of responding to defendant's

arguments], we 'typically cede prosecutors some latitude in

responding to defense counsel. . . .'" Hansen, 434 F.3d at 102

(quoting United States v. Pérez-Ruiz, 353 F.3d 1, 10 (1st Cir.

2003)). While "prosecutor[s] should refrain from arguments

[predicting] the consequences of the jury's verdict," United States

v. Whiting, 28 F.3d 1296, 1302 (1st Cir. 1994) (citation omitted)

-12- (second alteration in original), the statement here was simply a

response to provocative statements made by Skerret's counsel.

Admitting the statement under the circumstances we have before us

was not plain error.

III. Conclusion

The district court's refusal to accept of Skerret's

attempted guilty pleas is affirmed, and Skerret's conviction is

affirmed.

-13-