US v. Lara-Joglar

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Jeffrey R. Howard, Appellate Judge and Rogeriee Thompson, Appellate Judge. Per Curiam. Unpublished. [09-1964]

Case: 09-1964 Document: 00116119209 Page: 1

Date Filed: 10/05/2010

Entry ID: 5490904

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 09-1964
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL LARA-JOGLAR, a/k/a Picu, a/k/a Rafito, a/k/a Pito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Geoffrey M. Raux, Michael J. Tuteur, Matthew A. Ambros and
Foley & Lardner LLP, on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia RodríguezVélez, United States Attorney, on brief for appellee.

October 5, 2010

Case: 09-1964 Document: 00116119209 Page: 2

Date Filed: 10/05/2010

Entry ID: 5490904

Per Curiam. This is Rafael Lara-Joglar's direct appeal
from his conviction and sentence for his participation in a multidefendant drug-trafficking conspiracy.

The defendant's principal

arguments on appeal are that his guilty plea was involuntary and
unknowing

and

that

unconscionable.

his

plea

agreement

as

a

whole

was

We will discuss those arguments before addressing

the enforceability of the appeal waiver in his plea agreement
because, if the guilty plea or the plea agreement as a whole is
invalid, then the appeal waiver provision of the agreement is
obviously invalid as well.
The parties disagree as to the applicable standard of
review of these claims.
defendant

did

not

seek

The government argues that, because the
to

withdraw

his

guilty

plea

before

sentencing, this court's review of the validity of his plea is only
for plain error.

The defendant's opening brief is silent on the

standard of review (in violation of Rule 28(a)(9)(B) of the Federal
Rules of Appellate Procedure), but his reply brief argues that,
even though the claims were not preserved, a de novo standard of
review applies.

Because we conclude that the guilty plea and plea

agreement were valid under either standard, we need not resolve
that disagreement.
The major common premise of this group of arguments is
that although the defendant's own participation in the underlying
offense was allegedly limited, he was charged along with 58 co-

-2-

Case: 09-1964 Document: 00116119209 Page: 3

Date Filed: 10/05/2010

Entry ID: 5490904

defendants with participating in a drug-trafficking conspiracy
involving large amounts of drugs, guns (including machine guns),
and several murders and that the government had massive physical,
audio-visual, and documentary evidence that might unfairly be
attributed to him, especially given the potentially self-serving
testimony of at least five cooperating witnesses, resulting in a
much higher sentence than he received by pleading guilty.

A

further allegedly coercive circumstance was the court's summary
denial of his newly appointed counsel's motion to continue the
trial after his original counsel was forced to withdraw, due to a
conflict of interest, less than three weeks before trial.

He

argues that those circumstances coerced him into pleading guilty
rather than going to trial and facing the likelihood of "guilt by
association"; that, in light of those circumstances, the court
should have taken additional steps to ensure that his plea was
voluntary and knowing; and that these same circumstances forced him
to accept the government's proposed plea agreement, which he
characterizes as "unconscionable."
"It cannot be gainsaid that a defendant's decision to
enter a guilty plea is sometimes influenced by his assessment of
the prosecution's case."
291 (1st Cir. 2006).

Ferrara v. United States, 456 F.3d 278,

But that common motive for pleading guilty

"cannot form the basis for a finding of involuntariness," unless
"the

defendant's

misapprehension

-3-

of

the

strength

of

the

Case: 09-1964 Document: 00116119209 Page: 4

Date Filed: 10/05/2010

Entry ID: 5490904

government's case results from some particularly pernicious form of
impermissible conduct."

Id.

The allegedly improper conduct that

the defendant attributes to the government here is primarily that
it brought a multi-defendant conspiracy prosecution.
of course, is not impermissible.

That alone,

While various courts, including

this one, have recognized the risks of such prosecutions--namely,
that

the

jury

will

find

individual,

presumptively

innocent

defendants guilty by virtue of their association with their more
obviously culpable co-defendants--they have done so primarily in
the context of requiring that certain safeguards be imposed to
prevent such risks from being realized.

See, e.g., Richardson v.

Marsh, 481 U.S. 200, 211 (1987) (holding that where a nontestifying
co-defendant's

out-of-court

confession

does

not

facially

incriminate another defendant, it can be admitted in a joint trial
only with a limiting instruction and redacted to eliminate any
reference to the other defendant's existence); Bruton v. United
States,

391

U.S.

123,

135-36

(1968)

(holding

that

where

a

nontestifying co-defendant's out-of-court confession does facially
incriminate another defendant, it cannot be admitted in a joint
trial even with a limiting instruction); United States v. OfrayCampos,

534

F.3d

1,

24-31

(1st

Cir.)

(vacating

defendants'

convictions where the court told the jury, without any limiting
instruction, that 37 co-defendants were in prison for participating
in the alleged conspiracy), cert. denied, 129 S. Ct. 588 (2008).

-4-

Case: 09-1964 Document: 00116119209 Page: 5

Date Filed: 10/05/2010

Entry ID: 5490904

Although the defendant claims that he should have been
made aware of those safeguards at his change-of-plea hearing, no
such detailed description was required. Rule 11 requires only that
the court inform the defendant of "his right at trial to confront
and cross-examine witnesses," Fed. R. Crim. P. 11(b)(1)(E), which
has been found to be satisfied where the court merely "touched on"
that right and the defendant expressed no confusion. United States
v. Moriarty, 429 F.3d 1012, 1020 n.5 (11th Cir. 2005).
Constitution requires even less.

The

Ward, 518 F.3d at 83 & n.13.

Here, the court not only mentioned those rights but explained them,
at some length, in layman's language.

That explanation was more

than sufficient.
The defendant further objects to the court's use of the
words "anyone" or "someone" as being too narrow to include the
possibility that "it was the coercive circumstances--brought on by
the

Government's

tactics--that

compelled

oppressive terms in the plea agreement."

[him]

to

accept

the

However, even in a

potentially more coercive, package-plea situation, which was not
present here, the general inquiry as to whether "anyone" forced the
defendant to plead guilty has been held sufficient.

United States

v. Mescual-Cruz, 387 F.3d 1, 9-10 (1st Cir. 2004); cf. United
States

v.

Martinez-Molina,

64

F.3d

719,

734

(1st

Cir.

1995)

(finding inquiry as to whether the "prosecutor" forced a defendant

-5-

Case: 09-1964 Document: 00116119209 Page: 6

Date Filed: 10/05/2010

Entry ID: 5490904

to plead guilty insufficiently broad to cover the possibility that
he was coerced to do so by his co-defendants).
The final allegedly "coercive circumstance" that the
defendant points to is that, less than three weeks before the
scheduled trial date, the court summarily denied newly appointed
defense

counsel's

motion

for

a

continuance

of

the

trial.

Ordinarily, denial of a continuance of trial is within the broad
range of the district court's discretion, United States v. MangualSantiago, 562 F.3d 411, 429-30 (1st Cir. 2009); but an unexplained
denial may be an abuse of that discretion, id. at 430-31.
Here, although the court initially gave no reasons for
denying the motion, it later explained that it had appointed this
particular

attorney

because

he

had

experience

in

criminal

litigation and knowledge of criminal law in general and of this
case in particular (through his earlier, brief representation of
another defendant) and would therefore be able to "go through the
evidence in the case immediately, and make an accurate assessment
of where [the defendant's] case stood in terms of the complete
scenario of the case" and could do so "rapidly."
continuance

in

those

circumstances

was

within

Denying a
the

court's

discretion.
As to the unconscionability of the plea agreement, the
defendant alleges that the government refused to negotiate the
terms of the plea agreement with him and that the terms it offered

-6-

Case: 09-1964 Document: 00116119209 Page: 7

Date Filed: 10/05/2010

were unreasonably favorable to the government.

Entry ID: 5490904

Those allegations

are unsupported by the record, which indicates that the parties
engaged in extensive, good-faith plea negotiations and that the
terms of the final agreement, far from being "unconscionable," were
highly favorable to the defendant in that, absent the agreement, he
was exposed to a mandatory minimum of ten rather than five years
and a maximum of a life sentence rather than the 156-month sentence
jointly recommended in the agreement, the best deal offered to any
similarly situated defendant.
plea

in

general

were

The plea agreement and the guilty

therefore

not

so

coercive

as

to

be

involuntary.
The

threshold

issue

as

to

the

remainder

of

the

defendant's appellate arguments is the enforceability of his appeal
waiver; if it is enforceable, then we need not--and should not-reach the other issues that the defendant raises on appeal. United
States v. Borrero-Acevedo, 533 F.3d 11, 18 (1st Cir.) ("[A]n
inquiry into the merits is exactly what a waiver of appeal blocks."
(internal quotation marks omitted)), cert. denied, 129 S. Ct. 587
(2008).

We will therefore address that issue next.
Presentence waivers of appeal are enforceable if the

waiver was "knowing" and "voluntary" and if enforcing it would not
result in a "miscarriage of justice."

-7-

United States v.

Teeter,

Case: 09-1964 Document: 00116119209 Page: 8

Date Filed: 10/05/2010

257 F.3d 14, 24-25 (1st Cir. 2001).1

Entry ID: 5490904

In determining whether the

waiver was knowing and voluntary, we evaluate whether the written
plea agreement "contains a clear statement elucidating the waiver
and

delineating

its

scope"

and

whether

the

district

court

"inquire[d] specifically at the change-of-plea hearing into any
waiver of appellate rights."

Id. at 24; see also Fed. R. Crim. P.

11(b)(1)(N) (requiring such an inquiry).
Here, the defendant does not challenge the clarity of the
written waiver, which provided that if the court "accepts this Plea
Agreement and sentences [the defendant] according to its terms,
conditions and recommendations, [he] waives and surrenders his
right to appeal the judgment and sentence in this case."

Nor could

he successfully mount such a challenge since we have repeatedly
upheld the clarity of nearly identically worded waivers.

See,

e.g., González-Colón, 582 F.3d at 127; United States v. De-La-Cruz
Castro, 299 F.3d 5, 10 (1st Cir. 2002).
Rather, in arguing that the appeal waiver itself was
unknowing and involuntary, the defendant focuses on the alleged
insufficiency of the court's explanation of the waiver at the

1

Because the government does not invoke the plain-error
standard that would otherwise apply to an unpreserved challenge to
the enforceability of an appeal waiver, Borrero-Acevedo, 533 F.3d
at 13, we apply the Teeter standards without the plain-error
overlay. See United States v. Edelen, 539 F.3d 83, 85 n.1 (1st
Cir.), cert. denied, 129 S. Ct. 427 (2008); United States v.
Chandler, 534 F.3d 45, 49 n.3 (1st Cir. 2008).
-8-

Case: 09-1964 Document: 00116119209 Page: 9

Date Filed: 10/05/2010

change-of-plea hearing and at sentencing.

Entry ID: 5490904

The record of those

hearings, however, reveals no such deficiencies.
At the change-of-plea hearing, the court specifically
brought the appeal waiver to the attention of the defendant and his
co-defendant, whose agreement apparently contained an identically
worded waiver.

The court correctly explained the waiver, as

applied to each defendant's circumstances, as follows:
[I]f I sentence you Mr. Lara to 156
months and Mr. Aponte if I sentence
you to 108 months concurrent, then
you will accept that as the final
sentence. You will not be asking a
higher Court to review what I have
done or how I made the analysis of
the sentencing guidelines or what
w[ere] the factors that l[ed] to any
sentence, to that sentence that I
imposed. Which means this sentence
will be firm and final.
Id.
The

defendant

argues

that,

by

using

the

word

"concurrent," the court created confusion as to whether Lara's
recommended 60-month sentence on Count 7 would be concurrent with
or consecutive to his 96-month sentence on Count 1. However, since
the court specifically referred to a sentence of 156 months for
Lara, it was clear that the number 156 referred to the total
recommended sentence on both counts (96 plus 60), and that the word
"concurrent" applied only to co-defendant Aponte's recommended
sentence, which was previously described as concurrent with his
sentences on related federal and state offenses. Not only did Lara
-9-

Case: 09-1964 Document: 00116119209 Page: 10

Date Filed: 10/05/2010

Entry ID: 5490904

express no confusion with that explanation, any inference that he
was

confused

is

precluded

by

the

court's

earlier

repeated

explanations that the mandatory 60-month sentence on Count 7 would
be consecutive to the parties' recommended 96-month sentence on
Count 1 and by the defendant's own accurate explanation of the
meaning of "consecutive" in his own words.
The defendant goes on to argue that "[t]he waters were
further muddied" by the court's advice, at sentencing, that "were
[he] to appeal the judgment in this case [he had] ten days, [he
could] ask attorney Vega to file, [he could] do it pro se or [he
could] ask the Clerk of Court to file it on [his] behalf" and that
"[w]ere [he] to pursue an appeal, Mr. Vega could do it or any other
attorney from the Court[, and that,] [i]n addition[,] [he could]
ask for authorization to proceed in forma pauperis" (emphases
added). That conditional advice, however, was offered only "out of
an abundance of caution" and was immediately prefaced by the
following statement (omitted from the defendant's brief):

"The

sentence [the court] imposed [w]as pursuant to the plea agreement
stipulated between the parties so that I take it that the waiver of
appeal is triggered and that waiver is totally enforceable."
Neither the defendant nor his attorney objected to or sought
clarification of that statement.

In that context, nothing the

court said at sentencing "muddied" its previous clear explanation
of the appeal waiver at the change-of-plea hearing.

-10-

Rather, in

Case: 09-1964 Document: 00116119209 Page: 11

fulfilling

its

obligation

under

Date Filed: 10/05/2010

Rule

35(j)(1)

to

Entry ID: 5490904

advise

the

defendant of "any right to appeal," the court did precisely what we
prescribed

in

these

circumstances,

namely,

to

be

"especially

careful in its choice of words, taking pains to explain to the
defendant that h[is] right to appeal [wa]s circumscribed by h[is]
preexisting

waiver."

Teeter,

257

F.3d

at

25.

The

court's

comments, taken as a whole, thus fell far short of the "blanket
assurance

about

the

right

to

appeal"

that

we

have

cautioned

against. Id. Therefore, the defendant's arguments that his waiver
of appeal was unknowing are unavailing.
The defendant further faults the district court for
failing to inquire separately as to the voluntariness of the appeal
waiver (in addition to asking whether "anyone forced [him] or
compelled [him] in any way2 to accept the terms and conditions" of
the plea agreement; whether "someone forced [him] in any way or
manner . . . to accept [the government's] version of facts"; and,
more generally, whether "someone in any way or fashion forced [him]
to make the decision of pleading guilty").

That claim for more

specificity fails.
"Although

specific

attention

to

the

issue

of

voluntariness in any plea proceeding is highly desirable, there is

2

The phrase "in any way" was misleadingly omitted from the
defendant's brief. That omission coupled with the one noted above
leads us to remind counsel of their responsibility of candor to the
court. See Model Rules of Prof'l Conduct R. 3.3; Amstar Corp. v.
Envirotech Corp., 730 F.2d 1476, 1486 (Fed. Cir. 1984).
-11-

Case: 09-1964 Document: 00116119209 Page: 12

Date Filed: 10/05/2010

no specific script that must be followed."

Entry ID: 5490904

Ward, 518 F.3d at 86.

There is no requirement in Rule 11 or otherwise that the court
specifically ask whether a defendant's appeal waiver was voluntary;
Rule 11(b)(1)(N) requires only that the court determine whether a
defendant "understands" the terms of any such waiver, which was
done here.

Although Rule 11 does require the court to "address the

defendant personally in open court and determine that the plea is
voluntary," Fed. R. Crim. P. 11(b)(2) (emphasis added), even that
general inquiry is not constitutionally mandated.
at 82.

Ward, 518 F.3d

Moreover, although not required to do so, the court here

did ask the defendant whether "anyone forced or compelled [him] in
any way to accept the terms and conditions of this contract that
[he had] made with the government," and that question immediately
followed the discussion of the appeal waiver.
Because the first two Teeter factors are thus satisfied,
the only remaining potential barrier to enforcing the appeal waiver
is if doing so would "work a miscarriage of justice."
F.3d at 25.

Teeter, 257

But the defendant's opening brief is virtually silent

on that point; the only allusions to that standard are in a
parenthetical following a case citation and in a footnote.

His

reply brief cites the exception but develops no argument as to how
it applies here.

By not directly making a miscarriage-of-justice

argument in his opening brief and belatedly mentioning but not
developing it in his reply brief, the defendant arguably waived the

-12-

Case: 09-1964 Document: 00116119209 Page: 13

Date Filed: 10/05/2010

Entry ID: 5490904

application of that exception. United States v. Hall, 557 F.3d 15,
20 n.3 (1st Cir.), cert. denied, 129 S. Ct. 2849 (2009); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Nevertheless, applying the relevant factors, including
"'the clarity of the alleged error[s], [their] character and
gravity, [their] impact on the defendant, any possible prejudice to
the government, and the extent to which the defendant acquiesced in
the result,'" United States v. González-Colón, 582 F.3d 124, 129
(1st Cir. 2009) (quoting United States v. Gil-Quezada, 445 F.3d 33,
37 (1st Cir. 2006)), we have considered whether foreclosure of
either of the remaining arguments raised on appeal3 would be so
unjust as to satisfy the appropriately demanding miscarriage-ofjustice standard, and we have concluded that no such injustice
would result.
In sum, the defendant's guilty plea and plea agreement
were valid, his appeal waiver was knowing and voluntary, and
enforcing the waiver to preclude his remaining arguments on appeal
would not work a miscarriage of justice. Accordingly, the district
court's judgment is affirmed.4

See 1st Cir. R. 27.0(c).

3

Those arguments are that the court erred in imposing a
leadership enhancement and that 18 U.S.C. § 924(c) violates the
Second Amendment.
4

The panel has unanimously concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a)(2); 1st Cir. R. 34.0(b).
-13-