United States v. Skerret-Ortega ( 2008 )

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
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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
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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).
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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
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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.
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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
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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.
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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
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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
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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.
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(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)
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(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.
Affirmed.
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