USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1249

UNITED STATES,
Appellee,

v.

CARLOS MARTINEZ-MOLINA,
Defendant - Appellant.

____________________

No. 94-1250

UNITED STATES,
Appellee,

v.

LUIS MALDONADO-RODRIGUEZ,
Defendant - Appellant.

____________________

No. 94-1251

UNITED STATES,
Appellee,

v.

ALFONSO RODRIGUEZ-RESTO,
Defendant - Appellant.

____________________

No. 94-1252

UNITED STATES,
Appellee,

v.

ANGEL RODRIGUEZ-RODRIGUEZ,
Defendant - Appellant.

____________________

No. 94-1253

UNITED STATES,
Appellee,

v.

ANGEL FELICIANO-COLON,
Defendant - Appellant.

____________________

No. 94-1254

UNITED STATES,
Appellee,

v.

LUIS MAYSONET-MACHADO,
Defendant - Appellant.

____________________

No. 94-1255

UNITED STATES,
Appellee,

v.

RAFAEL E. VELEZ-MATOS,
Defendant - Appellant.

____________________

No. 94-1325

UNITED STATES,

Appellee,

v.

VICTOR NOBLE-CANALES,
Defendant - Appellant.

____________________

-2-

No. 94-1631

UNITED STATES,
Appellee,

v.

EDDIE TRAVIESO-OCASIO,
Defendant - Appellant.

____________________

No. 94-1791

UNITED STATES,
Appellee,

v.

OSCAR PAGAN-GARCIA,
Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Selya and Cyr, Circuit Judges.

______________

_____________________

Teodoro M ndez-Lebr n,
______________________

by Appointment

of

the Court,

for

appellant Carlos Mart nez-Molina.

Laura
Maldonado-Rodr guez,
___________________________
Defender,

with

whom

Assistant

Federal

Benicio
S nchez-Rivera,
________________________

Federal

Public

Public

Defender, was on brief for appellant Luis Maldonado-Rodr guez.

Ram n Garc a, by
_____________

Appointment of

the Court,

on brief

for

appellant Alfonso Rodr guez-Resto.

Eric B. Singleton for appellant Angel Rodr guez-Rodr guez.
_________________

Frank Pola, Jr., by Appointment of the Court, for appellant

________________

Angel Feliciano-Col n.
Manuel San Juan, by Appointment
_______________

of the Court, for appellant

Luis Maysonet-Machado.

-3-

Miriam Ramos-Grateroles,
_______________________

by Appointment

of the Court,

for

appellant Rafael E. V lez-Matos.

Thomas R. Lincoln, by Appointment
__________________
Law Offices of Thomas R. Lincoln, was
___________________________________

of the Court,
on brief

with whom

for appellant

V ctor Noble-Canales.
Mar a H. Sandoval for appellant Eddie Travieso-Ocasio.
_________________

Lydia Lizarribar-Masini for appellant Oscar Pag n-Garc a.

_______________________
Joseph C. Wyderko,
__________________
whom

Attorney, Department

Guillermo Gil, United

_____________

of

States Attorney, and

Schmidt, were on brief for appellee.

_______

____________________

August 30, 1995

____________________

Justice, with

Esther Castro______________

-4-

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
____________

Appellants

defendants were arrested at the Barbosa Park in

Rico,

after

observed

Drug Enforcement

them

transaction.

pursuant

participating

arrest

on

searches were

district court denied

conditional

four

co-

Santurce, Puerto

Administration

("DEA")

what

to be

appeared

agent

drug

The defendants moved to suppress evidence obtained

to the

subsequent

in

and

guilty

the grounds

made

without

that

probable

their motions, and the

pleas.

Several

the arrests

cause.

and

The

appellants entered

appellants

subsequently

claimed

that

withdraw them.

their

pleas were

coerced

and

moved

to

The district court denied these motions as well.

Appellants

suppress and

guilty

now appeal

motions to

the denial

of

withdraw their guilty

the motions

pleas.

to

For the

following reasons, we affirm in part and reverse in part.

STATEMENT OF FACTS
STATEMENT OF FACTS

We recite the facts adduced at a suppression hearing in

the light

extent

clearly

most favorable to

that they

the district court's ruling

derive support

erroneous.

from

the record

United States v. Sealey, 30

______________
______

to the

and are

not

F.3d 7, 8 (1st

Cir. 1994).

On July 1,

1993, at approximately 2:30 p.m., DEA Agent

Carlos Rivera ("Agent Rivera") was driving past Barbosa park when

he noticed eight or nine men grouped around a concrete bench near

one of

the park's

basketball courts.

Seven or

were parked in a row alongside the group of men.

eight vehicles

Appellant Luis

Maldonado-Rodr guez ("Maldonado") was talking on a cellular phone

-5-

and another man in the group had a cellular phone attached to his

waist.

Agent Rivera observed that

the men were not

dressed to

play basketball

and did

alcoholic beverages.

not

know

Maldonado

any of

near

have coolers,

sodas, or

Agent Rivera testified that although he did

the

not appear to

men

by name,

he

drug distribution

had

spot

occasionally seen

in

a local

housing

project.

Agent

lot and began

Rivera parked his

car in the

to surveil the group through

adjoining parking

binoculars.

Besides

Maldonado, the group

included appellants Alfonso Rodr guez-Resto

("Rodr guez-Resto"),

Eddie

Feliciano-Col n

Luis

("Feliciano"),

V ctor

Maysonet-Machado ("Maysonet"),

("V lez").

Carlos

Travieso-Ocasio

Rub n

Codefendants

Tejada-Morales

Enrique

and

("Travieso"), Angel

Noble-Canales ("Noble"),

Rafael E.

V lez-Matos

Romero-Carri n

("Romero"),

("Carlos

Tejada"),

Angel

David

Tejada-Morales ("Angel Tejada") were also present.1

About

ten

minutes

later, Agent

Rivera

saw

a black

Nissan Pathfinder drive up and park behind Maldonado's Red Suzuki

jeep.

exited

The

the

passenger of the black

vehicle

Feliciano, and

handbag

and

Romero.

from the

rear of

Pathfinder (the "Passenger")2

conversed

with

The Passenger

the

Maldonado,

then

removed

black Pathfinder

Travieso,

large

and placed

it

between a white GMC van and a gray Mercury Cougar parked side-by____________________

Romero, Carlos

Tejada, and Angel

Tejada are

not parties to

this appeal.

The

driver and passenger of

the black Pathfinder

identified.

-6-

were never

side

next to

second handbag

the basketball

court.

from the black

The

Passenger removed

Pathfinder and placed it

next to

the first.

Agent Rivera then drove through the parking

a closer look.

Feliciano,

handbags.

As

Romero,

he passed

and

the

saw Maldonado,

Passenger

gathered

Travieso,

around

the

Agent Rivera testified that the Passenger was handling

square-shaped packages that

Rivera

by, he

lot to get

also noticed that the

appeared to contain cocaine.

sliding door of

Agent

the white GMC van

was open, although he could not see anything inside.

After returning

to

his

previous

surveillance

post,

Agent Rivera saw Noble, Maysonet, Carlos Tejada, and Angel Tejada

standing near the black Pathfinder.

Agent Rivera also

observed

Travieso and Romero apparently arranging something in the rear of

a black Pontiac station wagon.

carry anything

to

later, the black

the black

Agent Rivera did not observe them

station

wagon.

Several

Pathfinder left the parking lot.

minutes

Agent Rivera

then left his surveillance post and called his office for backup.

Around

the same

appellant

arrived in a

Angel

time

as

Agent Rivera

Rodr guez-Rodr guez

returned

post,

("Rodr guez-Rodr guez")

black Chevrolet Lumina, joined the

or four minutes, and then left.

to his

group for three

Appellants Oscar Pag n-Garc a ("Pag n") and codefendant

Roberto Maldonado-Torres

("Maldonado-Torres") arrived

Ford Mustang

minutes later.

Travieso

about five

approach

the Mustang

and

in a

Agent Rivera

lean

his body

red

observed

inside

the

-7-

vehicle as if he were looking for something.

object

(which Agent

Rivera

could not

Travieso removed an

identify)

from the

red

Mustang

and headed

returned,

brought

driver's

Rivera

he took

it

towards the

to the

green

rear

side of the

testified

that

of

the

Pag n as

thereafter,

the

that vehicle.

trunk

When

red Mustang

Pag n

opened its trunk.

remained

open

he

and

exited the

for

Agent

several

unable to discern what happened to

the

A few seconds later, Maldonado-Torres exited from

the passenger's side of the

and

Toyota Tercel.

handbag from

red Mustang and

seconds, but that he was

green handbag.

gray

they

red Mustang and accompanied Travieso

joined the

group near

Rodr guez-Rodr guez returned to

the bench.

Shortly

the parking

lot in

the black Lumina and rejoined the group.

Several minutes later, Rodr guez-Resto and Romero

the

parking lot

time, several

in the

black Pontiac

other DEA agents

station wagon.

had joined Agent Rivera.

left

By this

Agent

Rivera followed

while the

Agent

to

the black station

other agents

continued

Rivera testified that

him to

ferret

be

out any

wagon as it circled

to surveil

the parking

lot.

Rodr guez-Resto and Romero appeared

conducting countersurveillance

"tails."3

the park

After

in

an effort

Rodr guez-Resto

and

to

Romero

returned to the parking lot, Agent Rivera joined the other agents

at his prior surveillance post.

____________________

Specifically, Agent Rivera testified that Rodr guez-Resto and

Romero were
looking
them . .

"buscando rabo . . .
_____________

around, checking on
. .

which indicates that they were

surveillance to see

who's watching

[T]hey're looking through their rear view mirrors,

looking all over the place to see who's watching them."

-8-

A few

("Mart nez")

Agents

moments later, appellant

arrived in

decided

a black

to intervene.

jackets, identified themselves

moved

in to

detain the

group.

Toyota Supra

The

Agents,

Mart nez

discarded an

Agent Rivera also found an

Agents

and the

DEA

as law enforcement personnel

and

V lez,

airplane

all clad

six DEA

in

Maldonado-Torres were all detained as they

scene.

Carlos Mart nez-Molina

Mart nez, Romero,

and

attempted to flee the

ticket while

fleeing.

abandoned cellular phone nearby.

The

also seized airline tickets from Feliciano, Pag n, Noble,

Maysonet, Carlos

tickets

Puerto

Tejada, and

had been

Angel Tejada.

issued under

Rico to New York

Travieso, Noble, Pag n,

false

All of

names for

later that afternoon.

the seized

a flight

from

Rodr guez-Resto,

Carlos Tejada, Angel Tejada,

and Romero

were all found to be carrying over $1,000 in cash.

Agent

been

Rivera testified that after all fourteen men had

arrested, he observed

suitcases in three

the red Suzuki, the white van,

also

testified

that

inspection stickers

twelve

were in

of the vehicles:

and the black station wagon.

yellow,

U.S.D.A.

plain view on

dashboards of six of the

vehicles.

based on

his experience

in law enforcement,

smugglers

commonly used

He

Agricultural

the front

seats and

Agent Rivera testified that,

these stickers

to

he knew

that drug

bypass agricultural

inspection at the airport.

vehicles.

Seven

for a total

The Agents then searched all

of the vehicles

contained two suitcases

of fourteen suitcases.

handbags in the black station

of the

The Agents

also found

each,

two

wagon, including the green handbag

-9-

Travieso

had removed

$3,000 in cash

from the

red Mustang.

in the black Lumina and an

The

Agents found

unused airline ticket

for a flight on the previous day in a Red Mazda Protege.

The

offices.

men

were

all

The Agents obtained

and handbags after

presence of

handcuffed and

in

to

the DEA

a search warrant for the suitcases

a drug detection

narcotics

taken

eleven

dog indicated the

of

the

suitcases

probable

and

both

handbags.

Each of the eleven suitcases contained thirty to forty

kilograms

of

cocaine.

Neither

handbag was

found

to contain

cocaine.

PROCEDURAL HISTORY
PROCEDURAL HISTORY

The

seized from

denied the

conditional

defendants

their

all

persons and

motions to suppress,

moved

to

suppress the

vehicles.

and all ten

The

evidence

district

court

appellants entered

guilty pleas to possession with intent to distribute

cocaine, in violation of 21 U.S.C. 841(a).

appellant's

limit

the

written plea

agreement,

the

In exchange for each

government agreed

to

each appellant's relevant conduct to fifteen kilograms for

purpose of sentencing.

"package deal"

The plea agreements

and were contingent

were part of a

on all of the

defendants in

this case accepting the plea offer and entering a plea of guilty.

The plea agreements provided that

decide

to change

"should any of the

his plea according

to the offer,

automatically withdrawn as to all of the defendants."

Tejada, Angel

Tejada, and Romero had elected

were excepted from this requirement.

-10-

defendants

the plea is

Carlos

to go to trial and

All

ten

appellants

October 20, 1993.

Tejada, Angel

the government's

Tejada's motion

their

Later that day, the jury

codefendants Carlos

conclusion of

entered

for acquittal.

guilty

on

trial commenced for

Tejada, and

case, the

pleas

Romero.

court granted

On October

27, 1994,

At

the

Carlos

the jury

acquitted Angel Tejada and convicted Romero.

On November 16, 1993, Rodr guez-Resto moved to withdraw

his guilty plea.

Travieso and V lez both moved to withdraw their

guilty

January 31,

pleas on

1994,

the day

of the

sentencing

hearing.

The district court denied all three motions.4

THE MOTIONS TO SUPPRESS

THE MOTIONS TO SUPPRESS

I.
I.

Lawfulness of Arrests
Lawfulness of Arrests
_____________________

Nine

appellants

Rodr guez-Rodr guez,5

--

Maldonado,

Rodr guez-Resto,

Feliciano,

Maysonet,

V lez,

also denied

the motions to

Noble,

____________________

The district court

guilty

pleas of

three

other

defendants.

These

withdraw the

defendants,

however, do not appeal this issue.

Nothing was

seized from

Rather, he seeks to
In

this regard,

accordingly the

he

of Rodr guez-Rodr guez.

suppress the cash found in his Black Lumina.

argues

search of

incident-to-arrest.

the person

that his

arrest

the vehicle was

was unlawful

not a

and

valid search-

See New York v. Belton, 453 U.S. 454, 460-61

___ ________
______

(1981).

The government,

however, no

longer attempts

to justify

the

vehicle searches as incident to lawful arrest, contending instead

that there was probable cause to search the vehicles.

'automobile

"Under the

exception,' the only essential predicate for a valid

warrantless search of a motor vehicle by law enforcement officers

is probable cause to believe that the vehicle contains contraband

or other evidence of criminal activity."
977

F.2d

Therefore,
vehicle

706,

(1st

provided there

at the time

was valid even

had

710

Cir.
was

United States v. McCoy,

_____________
_____

1992)

probable

(citations
cause

to

of Rodr guez-Rodr guez' arrest,

if the arrest was

an independent basis

not, as the police

for searching the

omitted).
search

the

the search

would have

vehicle, apart from

-11-

Travieso, and

Pag n

-- argue that

they were

arrested without

probable cause, and that therefore the items seized

during their

arrest should have been suppressed.

A.
A.

Standard of Review
Standard of Review
__________________

With

respect to

motion to

district court's findings of fact

30 F.3d at

9; United States v.
_____________

Cir. 1990), cert. denied, 499

____________

suppress,

we review

only for clear error.

Maguire, 918 F.2d 254,

_______

U.S. 950 (1991).

Sealey,
______

257 (1st

This deferential

standard is appropriate because the district court has a superior

sense of what actually transpired during an incident by virtue of

its

ability to

see and

knowledge of the events.

975 (1st Cir.

1994).

hear the

witnesses who

have firsthand

United States v. Zapata, 18

_____________
______

Questions of law, however,

F.3d 971,

are subject to

de novo review.
_______

B.
B.

Id.
__

Applicable Law
Applicable Law
______________

Law enforcement officers may effect warrantless arrests

provided

that

they have

probable

cause

to believe

suspect has committed or is committing a crime.

Watson, 423 U.S.

______

103,

turning

cause is

Pugh, 420 U.S.

____

a fluid

concept --

on the assessment of probabilities in particular factual

contexts," Illinois
________

such

"[P]robable

the

United States v.
_____________

411, 416-18 (1976); Gerstein v.

________

113-14 (1975).

that

"must

be

v. Gates, 462
_____

evaluated

in

U.S. 213, 232 (1983),

light

of

the

and as

totality

of

____________________

any exploitation of illegal conduct.

Id. at n.4.
___

See also Brown

________ _____

v. Illinois, 422 U.S. 590, 599 (1975); United States v. Pimental,

________
_____________
________
645

F.2d 85,

86

(1st

Rodr guez-Rodr guez'

Cir. 1981).

motion

to

Therefore, in

suppress,

we

addressing

need not

decide

whether his arrest was unlawful.

-12-

circumstances."

105

(1st

United States v. Torres-Maldonado, 14

______________
________________

Cir.

Uricoechea-Casallas,
___________________

1994)

946

(quoting

F.2d

162,

F.3d 95,

United
States
________________

165

(1st

Cir.

v.

1991)).

Moreover,

"need

in order to

not present

Id. at 105
__

also
____

establish probable cause,

the quantum

the government

of proof necessary

to convict."

(quoting Uricoechea-Casallas, 946 F.2d at

___________________

United States v. Morris, 977 F.2d

_____________
______

(same), cert. denied, 113 S.

_____________

show that

circumstances

warrant

Ct. 1588 (1993); United States v.

______________

at the time

of the

arrest, the

Rather, it

facts and

known to the arresting officers were sufficient to

a prudent

committed or

See
___

677, 684 (1st Cir. 1992)

Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987) (same).

________

need only

165).

person in

was committing

believing that

an offense.

the

defendant had

Torres-Maldonado,
________________

14

F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91 (1964).
________ ____
____

Of

course, probable cause

must exist with

respect to

each

person arrested, and "a person's mere propinquity to others

independently suspected

of criminal

activity does

not, without

more, give rise to probable cause to search that person."

v. Illinois, 444 U.S. 85,

________

392 U.S. 40,

F.3d

23,

Ybarra
______

91 (1979) (citing Sibron v. New York,

______
_________

62-63 (1968)); see also United States v. Diallo, 29

________ _____________
______

25

circumstances

(1st

Cir.

1994).

Rather,

"some

additional

from which it is reasonable to infer participation

in criminal enterprise must be shown."

United States v. Burrell,

_____________
_______

963 F.2d 976, 986 (7th Cir.), cert. denied, 113 S. Ct. 357 (1992)
____________

(quoting United States

_____________

v. Hillison, 733 F.2d 692,

________

1984)).

-13-

697 (9th Cir.

In

assessing

association

to

others

the

significance

independently

of

suspected

defendant's

of

criminal

activity, the Hillison court looked to whether the known criminal

________

activity was contemporaneous with the association and whether the

circumstances

carried on

suggest that the criminal activity could have been

without the

knowledge of all

persons present.

Hillison, 733 F.2d at 697 (citations omitted).

________

See
___

Other courts have

focused on the nature of

and whether the

the place in which the arrest

individual himself was behaving

was merely "tainted"

by another.

occurred

suspiciously or

See United States v. Tehrani,

___ ______________
_______

49 F.3d 54, 59 (2d Cir. 1995).

survey of the relevant caselaw makes clear, however,

that it is often difficult to determine precisely what additional

factors

are

sufficient

to create

the

participatory

involvement.

In

officers had a

warrant to

search a

heroin.

Ybarra,
______

requisite

444

bar and

inference of

U.S.

at

90-91,

its bartender

for

They conducted a patdown search of Ybarra, a bar patron,

despite the

fact he

conduct, no

attempts to

statements.

had

made no

gestures suggesting

conceal contraband,

In declaring the

search invalid,

and no

criminal

suspicious

the Court

noted

that the officers "knew nothing

was present,

along

with several

tavern at a time when the

bartender would have

more about Ybarra except that he

other customers,

in a

public

police had reason to believe that

heroin for

sale."

Swint v. City of Wadley, Alabama,

_____
________________________

the

Id. at 91.
___

See also
_________

51 F.3d 988 (11th

Cir. 1995)

(holding that the legitimate search and seizure of one suspect in

-14-

a public place

cannot be bootstrapped into probable

cause for a

broadbase search of the business establishment and its patrons).

Similarly,

in

Sibron v.
______

New York, 390

_________

U.S.

40, 62

(1968), the Court held that probable cause was not established by

the

mere

narcotics

fact that

addicts

the defendant

over

arresting officer was

of the

and

(1st Cir.

period

of

eight

a number

hours

completely ignorant regarding

conversation and saw

the addicts.

773, 784

spoke to

nothing pass between

See also United States

_________ _____________

where

the

the content

the defendant

v. Chadwick, 532 F.2d

________

1976), aff'd on other grounds

_______________________

(1977) (mere act of picking

of known

433

U.S. 1

up suspected drug traffickers at the

train station and helping them load a contraband-laden footlocker

into

car does

not, without

United States v.
_____________

Di Re, 332
_____

"[t]he argument that

rendezvous'

in

more,

constitute probable

U.S. 581, 593 (1948)

cause);

(holding that

one who 'accompanies a criminal

to a crime

cannot be assumed to be a bystander, forceful enough

some circumstances,

is farfetched

when the

meeting is

not

secretive or in a suspicious hide-out . . . and where the alleged

substantive crime is

one which does not

necessarily involve any

act visibly criminal").

In

contrast, the

cases

in

which

courts

find

that

probable cause exists generally involve substantially more than a

momentary, random, or apparently innocent association between the

defendant

and

the known

criminal activity.

For

instance, in

United States v. Patrick, 899 F.2d 169 (2d Cir. 1990),

_____________
_______

the court

upheld the search

of a male defendant (Patrick)

who crossed the

-15-

border from

Canada into

woman (Taylor)

170.

other

New York at

who was found to

about the

same time

as a

be carrying narcotics.

Id. at
___

When the two entered the Immigration Office, there

were no

travellers

unusual story:

present,

and both

defendants

they had accidentally crossed the

told

the same

border by bus

and were

simply returning

When cocaine base

also arrested.

found that

entered

adequate

was found

Id.
___

the fact

basis

for

travelling and

States.

in the woman's

Id. at
___

purse, the man

Distinguishing Ybarra,
______

that the man

Office at

that both told

Patrick was not just a

cocaine."

at 172.

the Immigration

present and

to the United

and woman

a time

to

was

the court

had simultaneously

when no

the same unusual story

the officials

171.

reasonably

others were

"provided an

believe that

mere innocent traveling companion but was

acting in concert with Taylor in transporting the

Id.
___

Similarly,

881-82 (D.C. Cir.

in United States v. Halliman, 923 F.2d 873,

_____________
________

1991), police officers suspected

that a group

of

narcotics

traffickers was

several rooms at the

living

Holiday Inn.

at and

operating

Id. at 875.
___

out of

Pursuant to

valid search, the officers seized a substantial amount of cocaine

and

arrested defendant Halliman.

Id. at 876-77.
___

Subsequently,

two men entered the hotel lobby and headed for the rooms that had

just been searched.

The night manager informed

police that the

two men were "in the group" of narcotics traffickers who had been

frequenting the hotel

front of one

for the past

of the rooms in

month.

The

men stopped

which the cocaine had

-16-

in

been seized

and contemplated the broken lock.

The police then arrested them

and seized

carrying.

upholding

that

the cocaine

they were

the arrest, the

"the police

here

Id. at
___

court distinguished Ybarra

______

were

aware of

more

than a

877.

In

by noting

momentary,

casual, or random association among the defendants, the location,

and Halliman."

Id. at 882.
___

In Hillison, 733 F.2d at 697, the defendant registered

________

at a hotel under an alias and occupied a room adjacent to two men

known

to be

engaged in

narcotics trafficking.

The

three men

visited

back and

forth between

automobiles interchangeably.

the

two rooms

and used

The court found probable

their

cause to

arrest the defendant based on his close association with the drug

traffickers over the course of

three days, noting that "it taxes

credulity to

defendant] spent as much

assert that [the

time in

[the drug-traffickers'] company . . . without knowing about their

drug dealing activity."

Id.
___

In United States
_____________

Cir. 1993), the court found

found

at the

scene of

analysis focused on

private apartment

v. Holder, 990 F.2d

______

1327, 1329 (D.C.

probable cause to arrest a defendant

narcotics transaction.

the fact that the transaction

where the drugs

The

court's

occurred in a

were openly on display.

The

court distinguished Ybarra, stating that while Ybarra's "presence

______

in a

public tavern

was ostensibly

innocent, [the

defendant's]

presence in a private apartment just a few feet from a table full

of cocaine

can

hardly be

so

described. .

The

logical

-17-

inference

. .

was

that

[he]

was

distribution of drugs or a customer."

either a

Id.
___

party

to

the

With these principles in mind, we turn to the claims of

each appellant.

C.
C.

Analysis
Analysis
________

1.
1.

We

Travieso, Maldonado, and Feliciano

Travieso, Maldonado, and Feliciano
__________________________________

first consider

Maldonado, and Feliciano.

men were

dressed

Agent

in a park

to play

Rivera

phone, which

the

1311 (1st

near a basketball

court, they were

equipped for

witnessed Maldonado

we have previously noted

drug trade."

appellants Travieso,

The record indicates that although the

nor visibly

also

the claims of

United States v.
_____________

a social

talking

to be a

de la Cruz,
__________

Cir.), cert.
denied, 114 S.
______________

on

neither

gathering.

a cellular

"known tool[] of

996 F.2d 1307,

Ct. 356 (1993).

While

these

facts

might not

cause, they do

circumstances."

subsequent

More significant,

observations.

vehicle and

Feliciano

all

constitute probable

of the "totality of

however, are

He testified

that

testified further

after

gathered

appeared to be packages of

the white van and

that

around as

the black

cocaine.6

from the

gray Cougar.

Travieso, Maldonado,

the

the

Agent Rivera's

Passenger removed two handbags

placed them between

Rivera

alone to

weigh in our evaluation

Pathfinder arrived, the

Agent

be enough

Passenger

and

handled what

We think that

these facts

____________________

Appellants

argue that Agent Rivera must

have fabricated this

testimony because the handbags seized did not contain cocaine and
the

packages

of cocaine

were

suitcases for

which the

suggested

cross-examination,

on

all ultimately

appellants had no
however,

found

keys.
that

in locked

Agent Rivera
the

Passenger

-18-

would lead a prudent person to believe that a large-scale cocaine

transaction

was transpiring

Feliciano were involved.

and that

Travieso, Maldonado,

and

We accordingly hold that their arrests

were supported by probable cause.

2.
2.

We

Rodr guez-Resto, Maysonet, V lez, and Noble

Rodr guez-Resto, Maysonet, V lez, and Noble
___________________________________________

now

consider

whether

the

arrests

of appellants

Rodr guez-Resto, Maysonet, V lez, and Noble were supported by the

requisite

probable

improperly

arrested

independently

at 91.

for

their

four

argue

"mere

that

propinquity

they

to

were

others

Ybarra, 444 U.S.

______

Although a close call, we disagree.

we acknowledge

clearly analogous to

completely

more

facts

than

the

"momentary,

are

not

above, they are

random

four defendants, the location

of the

between

casual,

in that

or

factor enunciated by

connection

here

and its progeny

those independently suspected of

Applying the first

that

the

distinguishable from Ybarra

______

indicate

arrest, and

that

any of the cases discussed

association" between these

note

All

suspected of criminal activity."

While

they

cause.

criminal activity.

the Hillison court,

________

Rodr guez-Resto,

we

Maysonet,

V lez,

and

Noble

contemporaneous:

that

and

all

the

suspected

criminal

activity

four were among the original

initially attracted

Agent Rivera's

was

group of men

attention

by using

____________________

probably took the

Pathfinder.
supported

handbags with him

Because
by the

this

record, we

when he left

interpretation
cannot find

reliance on it to be clearly erroneous.

-19-

of

in the
the

black

events

the district

is

court's

cellular telephone

park.

and gathering in

strains credulity

being carried

to suggest

that the

on without the

the

group

allegedly handled the

Rivera's testimony

that

the second Hillison factor, we think it

________

cocaine transaction

knowledge of all

was

persons present.

Admittedly, Rodr guez-Resto, Maysonet, V lez, and Noble were

not among

group

a public

See Hillison, 733 F.2d at 697.

___ ________

With regard to

Id.
___

street clothes in

that

gathered

around

packages of cocaine.

group

Pathfinder when

the

was

bunched

it arrived,

tightly

Passenger

Nevertheless, Agent

clearly indicates that they were

suspected of narcotics violations.

the

as

part of the

Agent Rivera testified

and

suggesting that

moved

towards

they knew or

the

were

expecting

its

athletic gear

occupants.

Furthermore,

or picnic accoutrements

their

lack

made it less

of either

likely that

they were at the park for an unrelated and innocent activity, and

therefore suggested that

activity transpiring

around them.

conclusively rule out

think that they

not in

understood by

the "innocent

the criminal

Although these facts

do not

bystander" explanation,

reasonably imply participatory involvement.

the Supreme Court

weighed

they were not ignorant of

has explained, the evidence "must

terms of

those

library analysis

versed in

the field

As

be seen and

by scholars,

of law

we

but as

enforcement."

Gates, 462 U.S. at 232 (quoting United States v. Cortez, 449 U.S.
_____
_____________
______

411, 418 (1981)).

We

do not

think officers in

the field

are

required to divorce themselves from reality or to ignore the fact

that "criminals rarely

welcome innocent persons as

witnesses to

-20-

serious

crimes and

rarely seek

larger-than-necessary audiences."

F.2d

707, 712

(1993).7

(1st Cir.1992),

Accordingly, we

to

perpetrate felonies

United States v.
______________

cert. denied,
____________

find that

113 S.

the arrests

before

Ortiz, 966
_____

Ct. 1005

of Rodr guez-

Resto,

Maysonet, V lez,

and Noble

were

supported by

probable

cause.8
____________________

Although

this

observation

was

sufficiency-of-the-evidence challenge,

made

with

regard

we think it

to

also applies

in probable cause determinations.

Additional facts strengthen the probable cause finding against

V lez and Rodr guez-Resto.

V lez

fled when

the

Court has

held,

flight

officers,

when

coupled

suspect to

evidence

considered in

of

at

the

with
a

approach

specific

crime,

the decision to make

U.S. at 66-67; see also

________
1792, 1995 WL

Agents approached,

is a

and as
of

law

the Supreme

enforcement

knowledge relating
proper

an arrest.

factor
See
___

to

the

be

Sibron, 392
______

United States v. Romero-Carri n, No. 94_____________

______________

258843, at *1 (1st Cir. May 9, 1995) (related case

in which we held that codefendant Romero's flight "evinced a keen

consciousness of guilt");
(1st Cir. 1992);

United States v. Paleo, 967

_____________
_____

United States v. Cruz, 910 F.2d

_____________
____

Cir. 1990), cert. denied, 498 U.S. 1039 (1991).

____________

F.2d 7, 9

1072, 1077 (3d

With regard to Rodr guez-Resto, Agent Rivera testified that he

participated

in

codefendant

Romero.

efforts

countersurveillance

of

knowing

E.g., United States

____ _____________

Cir. 1993);

along

with

It is well settled that countersurveillance

are indicative

activity.

effort

participation

in

criminal

v. Delgado, 4 F.3d 780, 788

_______

United States v. Iafelice, 978

_____________
________

(9th

F.2d 92, 95 (3d Cir.

1992); United States v. Taylor, 956 F.2d 572, 578 (6th Cir. 1992)
_____________
______
(reasonable
glanced

suspicion could

furtively

in

Here,

Agent

watching them."

consistent

with innocent

trained officer
conducting

to infer

probable cause

(countersurveillance
very slowly,

could

Rivera

looking

testified

. looking

arguably

See
___

sufficient

to allow

and Rodr guez-Resto

and

accordingly
Iafelice,
________

inferred
all around,

occupants of all the cars they passed).

-21-

. .

that

observations, while

that Romero

be

conducting

place to

driving, were

determination.

if

"had

looking all over the

These

countersurveillance

as

"looking around

rear view mirrors,

see who's

where defendant

direction

and Rodr guez-Resto were

through their

driving

inferred

every

'countersurveillance'").
Romero

be

were

support

978 F.2d

at

where defendants
and

staring at

our

95

were

the

3.
3.

Pag n
Pag n
_____

Appellant

his "mere

Pag n

propinquity" to

arrived

interaction

infer

his

Travieso

Pag n also claims

after

participatory

was among

the others.

the

with Travieso

that he was

black

We disagree.

Pathfinder

was sufficient

involvement

the four

who had

arrested for

in

for

had

Although

left,

the officers

drug

his

to

transaction.

gathered around

when the

Passenger handled the suspicious packages taken from the handbags

retrieved

Agent

from the

back of

the black

Rivera could reasonably

intimately involved with

Rivera

testified that

Pathfinder.

From this,

have concluded that

Travieso was

the suspected drug transaction.

when Pag n

arrived in

the

Agent

red Mustang,

Travieso immediately came over and inserted his entire torso into

the

car

as if

vehicle."

object

he

were

Agent Rivera

which

Travieso then

rear of the red

he

"searching

inside

testified that Travieso then

could

extracted a

Mustang.

for something

not

identify

from

green handbag and

the

the

removed an

red

Mustang.

brought it

to the

Agent Rivera testified that Pag n then

exited the vehicle, headed to the rear, and opened the trunk.

few seconds later, the trunk was closed and Agent Rivera could no

longer

see the green handbag.

and they joined

Pag n then accompanied Travieso,

the group near the

bench.

We think

that these

events

fairly

imply

arrived, Agent Rivera

Travieso

participatory

already had

involvement.

good reason

When

Pag n

to suspect

that

was in possession of handbags containing cocaine.

When

Travieso immediately retrieved two objects from

Pag n's vehicle,

-22-

one of which was a handbag which he apparently transferred to the

trunk,

Agent Rivera reasonably

could have concluded

that Pag n

was

also a

accordingly

knowing participant

find that Pag n's

in the

drug transaction.9

arrest was supported

We

by probable

cause.

II.
II.

Lawfulness of the Vehicle Searches

Lawfulness of the Vehicle Searches
__________________________________

Appellants challenge

eleven vehicles:

Red

the black

Suzuki, the white GMC

the

searches

of

seven

Toyota Supra, the gray

van, the red

of

the

Nissan, the

Mazda Protege, the gray

Cougar, and the black Lumina.10

The

Supreme Court has ruled that

searched without a

believe that

it

warrant if the police have

contains contraband,

probable cause to

evidence of

other matter that may lawfully be seized.

500 U.S. 565

an automobile may be

a crime,

or

California v. Acevedo,
__________
_______

(1991); United States v. Ross, 456 U.S. 798 (1982).

_____________

As in other

____

contexts, probable cause to search

a vehicle exists

where the facts and circumstances known to the arresting officers

are sufficient to cause a person of reasonable caution to believe

the search is justified.

498, 502 (1st

United States v. Infante-Ruiz, 13 F.3d

_____________
____________

Cir. 1994) (citing 3 Charles

Practice and Procedure: Criminal 2d

____________________________________

Alan Wright, Federal

_______

662 at 579 (1982)).

That

____________________

Moreover, the immediacy

Pag n's arrival

of Travieso's actions with respect to

suggest that

Travieso was

expecting Pag n

and

knew his vehicle contained the handbags.

10

The searches

challenged

or are

manner that we deem

of

the

remaining

challenged in

a vague

either

not

and perfunctory

the challenge waived on appeal.

States v. Zannino, 895 F.2d 1,

______
_______
U.S. 1082 (1990).

such

vehicles are

See United
___ ______

17 (1st Cir.), cert. denied,

____________

494

-23-

is, there must have been particular facts indicating that, at the

time

of search,

the vehicle

or a

container within

it carried

contraband, evidence of crime, or other seizable matter.

Before addressing whether probable cause

each vehicle,

Id.
___

existed as to

we note that before they intervened, the arresting

officers had probable cause to believe

that the tightly gathered

group in

the parking

transaction.

of

the

lot was engaged

large-scale cocaine

Moreover, when the Agents approached, four members

group

attempted

participation in illegal

men,

in a

the Agents

to

flee,

activity.

found large

suggesting

their

Upon searching

amounts

of cash

knowing

the arrested

and seven

plane

tickets for a flight to New York later that afternoon, all issued

under false names.

the

vehicles.

U.S.D.A.

Six suitcases were in plain view in

Additionally,

stickers,

commonly

six

of

used

the

by

agricultural inspection at the airport.

vehicles

smugglers

three of

contained

to

bypass

From these observations,

a reasonable law enforcement officer could conclude that most, if

not all, of

New

the men were conspiring to

York, and that

they were using

transport narcotics into

the vehicles

scene to bring the narcotics to the airport.

parked at the

A.
A.

The black Supra and the gray Nissan

The black Supra and the gray Nissan
___________________________________

Mart nez

claims that his

were unlawfully searched.

two of

the vehicles

black Supra and

gray Nissan

Initially, we note that Mart nez owned

present at

the park,

-24-

and the

police were

aware of this fact.11

This suggests that his presence

other

the

defendants

coincidence

at

park

and significantly discounts

merely stopped by to chat

the Agents intervened,

in the process.

a reasonably

vehicles

design

rather

any theory that

than

he had

Additionally, when

Mart nez fled, discarding a

Moreover, U.S.D.A.

plane ticket

Agriculture stickers were in

We think that these facts would lead

prudent person to

to

by

with some friends.

plain view in the vehicles.

his

was

with the

facilitate

believe that Mart nez

the

narcotics

was using

conspiracy.

We

accordingly find that the searches of his vehicles were lawful.

B.
B.

The red Suzuki

The red Suzuki
______________

Maldonado maintains that

the search of his

red Suzuki

jeep was unlawful.

suitcases and

vehicle.

We disagree.

two U.S.D.A.

Agent Rivera testified that two

stickers were in

Putting these observations

observations

and

warranted

believing

in

facilitate

events,

we

that

plain view

in the

in the context of the other

think

the

the vehicle

the narcotics conspiracy.

officers

was

were

being

We accordingly

well

used

to

find that

the search of the red Suzuki was supported by probable cause.

C.
C.

The white GMC van

The white GMC van
_________________

Feliciano challenges the

Initially,

we note

that upon

search of his white

searching

Feliciano, the

GMC van.

Agents

found an airline ticket issued under a false name, suggesting his

involvement in the drug transaction.

____________________

Moreover, when Agent Rivera

11

Before

owners

searching the vehicles,

the police identified

their

by questioning the defendants and running computer checks

on the license plates.

-25-

observed the Passenger

squatting

handling the suspicious packages,

between Feliciano's van

and the gray

he was

Mercury Cougar.

Agent Rivera also noted that the sliding door of the van was open

at this time.

suitcases lay in

After intervention, the agents

plain view

in the

vehicle.

observed that two

These facts

all

suggest more than a random connection between the vehicle and the

suspected narcotics trafficking and in light of the circumstances

were sufficient

vehicle

to warrant

contained

the officers

contraband.

We

in believing

accordingly

find

that the

that the

search of the van was supported by probable cause.

D.
D.

The red Mazda Protege

The red Mazda Protege
_____________________

V lez

maintains that

Protege was unlawful.

the

We disagree.

search

Two

of

the

red

Mazda

U.S.D.A. stickers were

in plain view near the dashboard, thus linking the vehicle to the

suspected narcotics trafficking and warranting the Agents' belief

that it

contained

contraband.

We

accordingly find

that

the

search of the red Mazda Protege was supported by probable cause.

-26-

E.
E.

The gray Cougar and the black Lumina

The gray Cougar and the black Lumina
____________________________________

Rodr guez-Rodr guez maintains

gray Cougar was invalid.

We disagree.

of the suspicious packages occurred

the

white GMC

van.

that the

between the gray Cougar

Moreover, the

Agents

observed that

plain view in the Cougar.

the

think

we

that

sufficient to warrant the officers

was

being

used to

transport

the

The Passenger's handling

U.S.D.A. stickers lay in

circumstances,

search of

these

and

two

In light of

observations

were

in believing that the vehicle

narcotics

to

the airport.

We

accordingly find that the search of the gray Cougar was supported

by probable cause.

Rodr guez-Rodr guez also challenges

black Lumina.

While

think the search was

this presents a

the search of

somewhat closer

supported by the requisite probable

the

call, we

cause.

Admittedly, Rodr guez-Rodr guez arrived in the black Lumina after

the Pathfinder had left the area.

He joined the group for only a

few

Lumina,

minutes, left

thereafter.

in

the black

The Agents did

and returned

shortly

not observe anything being placed in

or withdrawn from the vehicle.

Nevertheless, before searching the vehicles, the Agents

determined that Rodr guez-Rodr guez

which

the

Agents

had

owned the gray

observed U.S.D.A.

stickers.

Cougar,12 in

This was

sufficient to warrant the Agents' belief that Rodr guez-Rodr guez

was intimately

involved in the suspected

narcotics trafficking.

____________________

12

The

black Lumina was owned by the sister of appellant Pag n.

It is not clear from the record when the Agents learned this.

-27-

Thus,

before searching the

suspected Rodr guez-Rodr guez

black Lumina, the

Agents reasonably

of drug trafficking and

knew that

he was independently associated with two vehicles at the scene of

the arrest:

the

one in which he

arrived and the one

he owned.

These

facts,

observations

sufficient

in

conjunction

and the

cash

and

to warrant the

was

being used to

711

(where

suspects

infer

accordingly

find

tickets

transport narcotics.

the

reasonably

Agent

probable

vehicle

the

that

Rivera's

already

Agents' belief that

officers have

used

with

in

contains

search

of

the

seized,

were

the black Lumina

McCoy, 977 F.2d at

_____

cause to

criminal

vehicle

the

See
___

previous

believe

activity,

that the

they

contraband).

black

Lumina

may

We

was

supported by probable cause.

MOTIONS TO WITHDRAW GUILTY PLEAS

MOTIONS TO WITHDRAW GUILTY PLEAS

Rodr guez-Resto, V lez, and

the district

court erred

their guilty pleas.

Travieso all contend

in denying their

motions to

that

withdraw

Other than

for errors

of

law, we

will overturn

the

trial judge's decision to deny a motion to withdraw a guilty plea

only for

"demonstrable abuse of

discretion."

United States v.
______________

Allard, 926 F.2d 1237, 1245 (1st Cir. 1991) (citing United States
______
_____________

v. Pellerito,
_________

court's

878 F.2d 1535,

subsidiary findings

1538 (1st Cir. 1989)).

of

fact

in

connection

The trial

with

plea-withdrawal motion are reviewed only for clear error.

It

is well

guilty plea prior

settled that

defendant may

the

Id.
___

withdraw a

to sentencing only upon a showing of "fair and

-28-

just reason" for the request.

F.3d 1, 3

United States v. Cotal-Crespo, 47

_____________
____________

(1st Cir. 1995) (citing Pellerito, 878

_________

see also Fed. R.

________

Crim. P. 32(d).

To gauge

F.2d at 1537);

whether the asserted

ground for withdrawal meets the Rule 32(d) standard, a court must

look at the totality of the circumstances, especially whether the

defendant's plea

was knowing, voluntary,

the meaning of Rule 11.

States v.
______

and intelligent within

See Cotal-Crespo, 47 F.3d at 3-4; United

___ ____________
______

Doyle, 981 F.2d

_____

591, 594 (1st Cir.

1992); Pellerito,
_________

878 F.2d at 1537.

(1)

the

Other factors the court

plausibility

of the

reasons

may consider include

prompting

the requested

change of plea; (2) the timing of the defendant's motion; and (3)

the

existence

Cotal-Crespo, 47
____________

or

nonexistence of

F.3d at

3-4.

appears to meet the strictures

still must evaluate the

any

an

Lastly,

assertion

even where

of innocence.

a defendant

of this four-part test, the court

proposed plea withdrawal in

relation to

demonstrable prejudice that will accrue to the government if

the defendant is permitted to change his plea.

United States
_____________

Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (citing

_______________

v.

Doyle,
_____

981 F.2d at 594; Pellerito, 878 F.2d at 1537).

_________

All three

and

appellants contend

attorneys coerced

them

into

that their

accepting

the

codefendants

package

plea

agreement

at

joint

meetings

hearings.

It is beyond dispute that a guilty plea is involuntary

and therefore invalid if it

physical

harm

defendant."

or

by

immediately

prior

to

the

plea

is obtained "by actual or threatened

coercion

overbearing

the

Brady v. United States, 397 U.S. 742,

_____
______________

will

of

the

750 (1970).

-29-

The Supreme Court

has also explained that

"a prosecutor's offer

during

plea bargaining of adverse or

person

other than
_____

inducing a

the accused

false guilty

lenient treatment for some

might pose

plea by skewing

a greater

the risks

danger of

a defendant

must consider."

Bordenkircher v.
_____________

(1978) (dictum).

This concern applies to package plea agreements

because,

"[q]uite possibly, one

Hayes, 434 U.S. 357,

_____

defendant will be

364 n.8

happier with

the package deal than his codefendant(s); looking out for his own

best interests, the lucky one may try to force his codefendant(s)

into going along with the deal."

657, 659-60 (9th Cir. 1993).

United States v. Caro, 997 F.2d

_____________
____

Package plea deals therefore impose

special obligations: the prosecutor must alert the district court

to the fact

that codefendants are entering a

package deal, Fed.

R. Crim. P. 11(e)(2); United States v. Daniels, 821 F.2d

_____________
_______

76, 78-

79 (1st Cir.

and the

1987); see also Caro,

________ ____

997 F.2d at 659-60,

district court must carefully ascertain the voluntariness of each

defendant's plea.

1000 n.6

See United States v. Buckley, 847

___ ______________
_______

(1st Cir.

1988), cert. denied,

____________

488 U.S.

F.2d 991,

1015 (1989);

Daniels, 821 F.2d at 79-80; see also Caro, 997 F.2d at 60.
_______
________ ____

Here, it

court was

plea

fully aware of

agreements.

district

is clear from

court

the record

the package nature of

We nevertheless

conducted

that the

a proper

otherwise erred in concluding

must

district

the defendants'

determine whether

voluntariness

that none of the

the

inquiry,

three appellants

had asserted a "fair and just reason" for withdrawing his plea.

A.

Rodr guez-Resto

or

A.

Rodr guez-Resto
_______________

-30-

district

Before ruling

on his

court

testimony

heard

attorney, and Mart nez' attorney.

effect,

that his

attorney would

because it would have

motion to

from

change his

plea, the

Rodr guez-Resto,

his

Rodr guez-Resto testified, in

not let

him plead

not guilty

destroyed the package deal negotiated

for

all of the defendants.

Resto's

guilty plea

Both

was entirely

coerced by the threat of

they

plea

agreements

concerned about the

and consulted

States Attorney Pereira, who stated:

to go to trial, there are three

anyway.

So he

Rodr guez-Resto was informed

the

package

was in

with

no way

In

fact,

voluntariness of

Assistant

United

"Look, if your client wants

defendants that will go to trial

can go to trial and the

the rest of the defendants."

jeopardizing

voluntary and

nullifying the package deal.

testified, they were

package

attorneys testified that Rodr guez-

agreement will stand for

Both attorneys testified that when

that he could

agreement, he

go to trial

again

without

reiterated

his

desire to plead guilty.

After hearing this testimony, the district court denied

Rodr guez-Resto's motion to withdraw, stating that

his testimony

simply

was not

guilty plea

credible.

had been entered

The

district court

found that

voluntarily and that his

his

claim of

coercion merely reflected second thoughts about the wisdom of his

decision

after learning that two codefendants had been acquitted

at trial.

These findings are amply supported by

therefore do not constitute clear

at the

original plea

hearing, the

-31-

error.

the record and

Moreover, we note that

district court

specifically

asked

Rodr guez-Resto whether

anyone had

guilty, to which he responded no.

during a

plea hearing

Blackledge v. Allison,
__________
_______

hold

that the district

"carry a

forced

him to

plead

Such statements in open court

strong presumption of

431 U.S. 63, 74 (1977).

court properly

verity."

Accordingly, we

denied Rodr guez-Resto's

motion to withdraw his guilty plea.

B.
B.

V lez and Travieso

V lez and Travieso
__________________

Both V lez and Travieso maintain that they were coerced

into accepting the package plea agreement.

We need not reach the

issue of whether their pleas were in fact coerced because we find

that

the district

court failed

to

conduct a

full and

direct

voluntariness examination in open court, thereby compromising one

of Rule

their

11's

"core concerns"

guilty

(explaining

coercion,

pleas.13

that

Rule

and undermining

See
___

Allard,
______

11's core

2) understanding of

926

concerns

the validity

F.2d

are

the charges, and

at

of

1244-45

1) absence

of

3) knowledge of

the consequences of the guilty plea).

Rule 11(d) states:

of guilty

or nolo

"The

court shall not accept a plea

contendere without

first, by addressing the

__________________

defendant personally in open court, determining that the

__________________________________

voluntary and not

apart

from

the result of force or threats

plea

agreement."

Fed.

R.

Crim.

plea is

or of promises

Proc.

11(d)

____________________

13

The district court divided the ten appellants into two groups

of

five for

the

Rodr guez-Resto
were

in the

purpose of
was in the

second.

conducting their
first group, and

Thus, V lez and

plea colloquies.

V lez and Travieso

Travieso were

not asked

exactly the same questions that Rodr guez-Resto was asked.

-32-

(emphasis added).

Here,

partial inquiry into

guilty

"entered

pleas.

the

court conducted

the voluntariness of Travieso's

Specifically,

into [the]

district

it

plea agreement

asked them

without

whether

only

and V lez'

they had

compulsion or

any

threats or promises

its agents."

were

It

pleading

threatened

by the -- from

the U.S. Attorney or

did not, however,

guilty

voluntarily

ask whether

or

whether

any of

the defendants

they

had

been

or pressured by their codefendants into accepting the

package

plea agreement.

court's

inquiry was

Under these circumstances, the district

incomplete because,

regardless of

whether

Travieso's and V lez' guilty pleas were actually coerced by their

codefendants,

still

have

the literal answer

been

"yes."

to the court's

Admittedly,

all

question could

the

defendants

acknowledged in their written

plea agreements that they had

been

into entering their

threatened or pressured

not

guilty pleas,

and all testified at the plea hearings that they had answered the

questions in

the plea

agreements truthfully

after consultation

with their attorneys.

'a written document

examination

is not a sufficient

[by the court].'"

30 F.3d 1, 3

Supreme

11.-05[2]

Court

United States v. Medina-Silveria,

_____________
_______________

Moore, 8 Moore's
_______

(1994)) (other citations

has similarly

direct interrogation by

expressed

the

the district court judge

thus

the extent
exposes

that

the district

the defendant's

in determining

-33-

judge

state

omitted).

importance of

whether to accept the defendant's guilty plea:

To

on

substitute for personal

(1st Cir. 1994) (quoting James W.

Federal Practice
________________

The

In many situations, however, "reliance

of

mind

on

the

record

interrogation,

he

not

through

personal

only facilitates

his own determination of a guilty

voluntariness,
that

but

he

determination

in

also facilitates
any

post-conviction proceeding
claim
Both

that
of

proportion

the

plea

these goals
to

judge resorts to

plea's

was
are

the degree

subsequent

based upon

involuntary.
undermined in
the

district

"assumptions" not based

upon recorded responses to his inquiries.

McCarthy v. United States, 394 U.S. 459, 467 (1969).

________
_____________

Where a district court has only partially addressed one

of Rule 11's core concerns,

there was no

we must reverse a determination that

fair and just reason

to set the plea

aside unless

the

irregularities

in

the

plea

proceeding

"substantial rights" of the defendant.

at

(discussing

application of

do

not

affect

See Cotal-Crespo, 47 F.3d

___ ____________

Rule

11(h)'s

harmless error

standard when plea-taking errors result in a "partial failure" to

address one of

plea

Rule 11's core

concerns).

Because

package-type

agreements increase the risk that one defendant will coerce

another

to plead

ascertain

guilty, the

was obligated

to

carefully whether the defendants were in fact entering

their pleas without compulsion.

United States v.
______________

district court

Travieso's

district court

Buckley,
_______

made no

and

circumstances, we

V lez'

See Daniels, 821 F.2d at 79-80;

___ _______

847 F.2d

at

effort whatsoever

pleas

cannot say

were

1000 n.6.

Here, the

to determine

coerced.

that they lacked

whether

Under

a fair

these

and just

reason

for plea withdrawal,

arguably

affected

their

especially since the

substantial

rights.

court's lapse

The

advisory

committee's notes make clear that Rule 11(h) "was not intended to

-34-

allow

district courts to

Medina-Silveria,
_______________

ignore Rule 11['s]

30 F.3d at 4 (citation

express commands."

omitted).

Rather, Rule

11(h)'s harmless error provision is intended to excuse "minor and

technical violation[s]" and

cannot be invoked where

the court's

deviation effectively "nullif[ies] important Rule 11 safeguards."

Fed.

R.

Crim. Proc.

amendment.

set aside

11(h)

advisory committee's

note

to 1983

V lez' and Travieso's guilty pleas must therefore be

and

the case

must be

remanded for

further Rule

11

proceedings or trial.

INEFFECTIVE ASSISTANCE OF COUNSEL

INEFFECTIVE ASSISTANCE OF COUNSEL

On

attorney

the

moved

morning of

for

the

continuance

required at another hearing.

suppression

because

hearing, Pag n's

her

presence

was

The court denied the motion, noting

that

a continuation would be logistically implausible because of

the

large number of defendants, attorneys, and witnesses present

for the hearing.

After consulting with Pag n, his attorney asked

Travieso's

hearing.

begun

attorney

to

cover for

her

during

the suppression

Pag n's attorney returned shortly after

ruling on

the motions

to

suppress.

the court had

After denying

the

motions, the court agreed to allow the defendants to file motions

to reconsider and to provide Pag n's counsel with a transcript of

the hearing.

Although the

court later extended the deadline for

filing motions, Pag n never sought reconsideration.

Pag n now contends that the court

erred by denying his

motion for a continuance, and that as a result of this

was

denied effective

assistance of

-35-

counsel.

We need

error, he

not wax

longiloquent on this contention.

United States v. Talladino, 38

_____________
_________

F.3d 1255, 1261

Initially, we

points

district

See
___

(1st Cir. 1994).

to nothing

in the

United States
_____________

discretion, and

upon expeditiousness

delay"

that would

suggest that

the

court abused its discretion in denying the continuance.

v. Rodr guez-Cort s,
________________

Cir. 1991) (refusal to grant

of

record

note that Pag n

949 F.2d 532,

a continuance is reviewed for abuse

only "unreasonable and

in the

constitutes an abuse

545 (1st

face of

arbitrary insistence

a justifiable

of discretion).

request for

Moreover, Pag n's

ineffective-assistance-of-counsel

given the extensive

counsel for his

even

claim

is

utterly

cross-examination conducted

eleven codefendants.

after receiving

untenable

by the

defense

Additionally, we note that

the transcripts

of

the hearing,

Pag n's

counsel did not move for reconsideration, suggesting that she was

then satisfied with the record developed

In

his

by the other attorneys.

fact, Pag n still has not explained what additional questions

counsel would

hearing.

We

have asked

Agent Rivera

accordingly reject Pag n's

at the

suppression

ineffective-assistance-

of-counsel claim.14

We

have

explored

the

other

claims

appellants and find them equally meritless.

Affirmed in part, reversed in part.

Affirmed in part, reversed in part.
__________________________________

raised

by

the

____________________

14

Although we ordinarily refrain from entertaining ineffective-

assistance-of-counsel claims on direct

v. Mala, 7
____
reach

F.3d 1058, 1063 (1st

Pag n's

claim

review, see United States

___ _____________

Cir. 1993), we have

because the

record

is

elected to

sufficiently well

developed

to permit ajudication and the claim is bound up in the

claim for

denial of

a continuance --

before us.

-36-

a claim that

is properly