United States v. Rosario-Camacho, Criminal No. 08–310 (FAB)

282 F.Supp.3d 449

UNITED STATES of America, Plaintiff,

v.Wilfredo ROSARIO–CAMACHO [4], Defendant.

Criminal No. 08–310 (FAB)

United States District Court, D. Puerto Rico.

Signed October 12, 2017

Carlos R. Cardona–Torres, G. Andrew Massucco–LaTaif, Isabel Munoz–Acosta, Myriam Y. Fernandez–Gonzalez, Olga B. Castellon–Miranda, United States Attorneys Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Ignacio Fernandez–De–Lahongrais, Fernandez & Alcaraz, PSC, San Juan, PR, Judith H. Mizner, Federal Defender Office, Boston, MA, for Defendant.

OPINION AND ORDER

FRANCISCO A. BESOSA, UNITED STATES DISTRICT JUDGE

Before the Court is defendant Wilfredo Rosario–Camacho's ("Rosario")¹ motion to withdraw his guilty plea. (Docket Nos. 4729 and 4911.) Defendant Rosario alleges, inter alia , that this Court participated in plea negotiations contrary to Federal Rule of Criminal Procedure 11(c)(1) (" Rule 11"). (Docket Nos. 4911 and 4928.) Consequently, defendant Rosario seeks to withdraw his guilty plea, and requests that this case be reassigned to another district court judge. (Docket No. 4928 at p. 8.) For the following reasons, the Court: (1) GRANTS defendant Rosario's motion to withdraw his guilty plea, and (2) REFERS this case to the Clerk of the Court for reassignment to another district judge.

I. Background

On September 2, 2008, a grand jury returned an indictment charging defendant Rosario with, among other offenses, conspiring to possess with intent to distribute controlled substances within 1,000 feet of a public school, and conspiring to use and carry firearms during, and in relation to, a drug trafficking crime. See Docket Nos. 4 and 2663.²

After a three-month trial, a jury found defendant Rosario guilty of counts one through six of the indictment.³ (Docket No. 2663.) The Court also entered a preliminary order of forfeiture as to all defendants pursuant to what the government incorrectly labeled as count 14 of the indictment. (Docket No. 2664.) Defendant Rosario received a sentence of life imprisonment as to counts one through five (i.e ., the drug trafficking counts), and a consecutive 240–month sentence as to count six (i.e. , the firearm conspiracy count). (Docket No. 3136.)

On June 25, 2015, the First Circuit Court of Appeals vacated the convictions of defendant Rosario and the other defendants who were tried with him because "the closure of the courtroom during jury selection was a structural error." United States v. Negrón–Sostre, 790 F.3d 295, 311 (1st Cir. 2015). The First Circuit Court of Appeals, however, noted that "there was sufficient evidence to establish that each of the defendants aided and abetted each of the others in the possession with intent to distribute all of the types of drugs charged." Id. at 311. The government pursued the conviction of defendant Rosario in a second prosecution. During the first status conference in anticipation of the second trial, "the Court recommended defendants to consider the possibility of entering into plea agreements with the government" because, according to the First Circuit Court of Appeals, "there was sufficient evidence to sustain the defendants' convictions." (Docket No. 4550.)

At the final status conference held on February 17, 2016, the Court set a trial date for March 28, 2016. (Docket No. 4655.) Defendant Rosario filed a change of plea motion on February 24, 2016, noting that the parties reached a plea agreement. (Docket No. 4661.) The government and defendant Rosario proposed a "C" plea agreement pursuant to Federal Rule of Criminal Procedure 1(c)(1)(C) ; under the terms of the parties' agreement, defendant Rosario admitted guilt as to count one, with a stipulated offense level of 38. (Docket No. 4673.) At the change of plea hearing on March 1, 2016, the Court stated that "[b]ecause this is a C plea, I will wait for the presentation of the pre-sentence investigation report before accepting the plea." (Docket No. 4672.) The United States Probation Officer assigned to this case filed the pre-sentence investigation report ("PSR") on May 18, 2016. (Docket No. 4724.) Defendant Rosario filed a pro se motion to withdraw his guilty plea on May 31, 2016. (Docket No. 4729.) The Court never entered an order accepting defendant Rosario's guilty plea after the PSR was filed.

In his pro se motion, defendant Rosario argues that he is entitled to withdraw his guilty plea for the following reasons: there was fabricated evidence presented at the first trial, that a "package plea offer"⁴ coerced him to admit culpability, and the government withheld discovery. (Docket No. 4729.) In a separate motion, defendant Rosario further argued that the "record shows a violation of the Criminal Procedure Rules: Plea Agreement Procedures, 11(c)(1)." (Docket No. 4820 at p. 5.) The Court appointed Assistant Federal Defender Judith Mizner to represent defendant Rosario in January 2017.⁵ Defendant Rosario, through counsel, then submitted a supplemental motion to withdraw his guilty plea on May 18, 2017. (Docket No. 4911).⁶

II. Withdrawal of Defendant Rosario's Guilty Plea Pursuant to Rule 11(d)(1)

Pursuant to Federal Rule of Criminal Procedure 11(d)(1), "[a] defendant may withdraw a guilty a plea ... before the court accepts the plea, for any reason or no reason." At defendant Rosario's change of plea hearing, the Court explicitly stated that it would "wait for the presentation of the pre-sentence investigation report before accepting the plea. " (Docket No. 4867 at p. 27, emphasis added.) To date, the Court has never accepted defendant Rosario's plea. Accordingly, defendant Rosario has an absolute right to withdraw his guilty plea pursuant to Fed.R.Crim.P. 11(d)(1).

In opposing defendant Rosario's motion, the government asserts that the Court accepted the guilty plea but not the plea agreement, arguing that "acceptance of the plea and acceptance of the plea agreement are not the same thing." (Docket No. 4946 (citing United States v. Hyde, 520 U.S. 670, 674, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) ("[G]uilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.")).) The government's argument that guilty pleas and plea agreements are distinct from each other is true, but irrelevant. Notably, at the change of plea hearing the Court did not state that its acceptance of the plea agreement remained contingent on the PSR; rather, it stated that it would review the PSR before accepting the "plea ." (Docket No. 4867 at p. 27, emphasis added.)

The circumstances of this case are similar to those of United States v. Shaker, 279 F.3d 494 (7th Cir. 2002). In Shaker, the trial judge stated the following at the change of plea hearing:

I am deferring my decision on acceptance or rejection of your plea of guilty and your plea agreement until after I've had an opportunity to study the Pre-sentence Report. If your plea of guilty and your Plea Agreement are then accepted, I will so advise you.

279 F.3d at 496. Following the change of plea hearing, but before the trial judge accepted the plea, the defendant moved to withdraw his plea; the trial judge denied the motion. The Seventh Circuit Court of Appeals held that, because the district court had not accepted the defendant's guilty plea, he "should have permitted [defendant] to withdraw his plea freely, without any inquiry into [defendant's] reasons for seeking to set it aside." Id. at 498 ; see also United States v. Battle, 499 F.3d 315, 328 (4th Cir. 2007) (defendant possessed the absolute right to withdraw his guilty plea after, at the change of plea hearing, the court stated "that the guilty plea will not be accepted or rejected by the court until a presentence report is available for the court's consideration").

This Court's statements at the change of plea hearing indicated that acceptance of the plea would be deferred until the Court reviewed the PSR. Because the Court never entered an order formally accepting defendant Rosario's plea, he is entitled to withdraw his guilty plea pursuant to Fed.R.Crim.P. 11(d)(1).⁷

III. Rule 11(c)(1)

Rule 11 provides that counsel for the defense and the government may discuss and reach a plea agreement. Fed.R.Crim.P. 11(c)(1). The Court, however, "must not participate in these discussions." Id. Judicial participation in the plea negotiation process "carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement." United States v. Bierd, 217 F.3d 15, 18 (1st Cir. 2000) (no Rule 11 violation when the judge at sidebar during trial stated "why doesn't [defendant] plead out, get the three levels he's entitled to and then that will accomplish the severance, but that's not for me to say."). Furthermore, the ban on judicial participation set forth in Rule 11"preserves the judge's impartiality both during and after the plea negotiations." United States v. Bradley, 455 F.3d 453, 460 (4th Cir. 2006) (internal quotation marks and citation omitted).

Defendant Rosario argues that this Court's comments during status conferences constituted judicial participation in plea negotiations. (Docket No. 4911 at p. 10.) In United States v. Davila, the United States Supreme Court rejected the proposition that judicial involvement in plea negotiations necessarily invalidates a guilty plea. 569 U.S. 597, 133 S.Ct. 2139, 2148, 186 L.Ed.2d 139 (2013) ("Nothing in Rule 11's text ... indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur of the plea without regard to case-specific circumstances."). In reviewing Rule 11 motions, "particular facts and circumstances [...] should be assessed, not in isolation, but in light of the full record." Id. at 2148–49. The relevant question, after examining the entire record, is whether it was reasonably probable that, but for the judge's involvement, the defendant would have exercised his right to a jury trial. Id.

Precedent from the First Circuit Court of...