United States v. Beras ( 2001 )

United States Court of Appeals
For the First Circuit
No. 99-1079
UNITED STATES,
Appellee,
v.
FELIX CORPORAN-CUEVAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
Bruce J. McGiverin for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Chief, Criminal Division, Assistant United States
Attorney, were on brief for appellee.
April 3, 2001
CAMPBELL, Senior Circuit Judge. Defendant Félix
Corporán-Cuevas (“Corporán”) was convicted upon a plea of guilty
of the following two offenses: (count I) conspiring, under 18
U.S.C. § 371, to violate the federal Hostage Taking statute, 18
U.S.C. § 1203, and (count II) aiding and abetting, under 18
U.S.C. § 2, the violation of the federal Hostage Taking statute,
18 U.S.C. § 1203. On appeal he raises four issues which we
consider seriatim, after a brief recitation of the relevant
facts.
On April 18, 1996, in the District of Puerto Rico,
defendant’s alleged co-conspirator Félix Beras and an
unidentified individual abducted thirteen-year old Carlos de la
Rosa Berbera who was traveling in a car with his grandmother,
Carmen Villar-Cordero. At gun-point, the two kidnapers ordered
Mrs. Villar-Cordero out of the car and drove off with her
grandson. Two hours later, Mrs. Villar-Cordero received a
ransom call, ordering that she produce the child’s parents or
money in exchange for her grandson’s freedom. By then, it
appears that, in addition to Félix Beras, defendant Corporán and
two other co-defendants were holding young Carlos. The FBI
succeeded in rescuing the child four days later in Rio Piedras.
Both Corporán and Beras were on the scene and were arrested.
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On the day scheduled for trial -- October 28, 1996 --
Corporán entered and the court accepted a change of plea of
guilty as to Counts I and II. On February 12, 1997, the
district court sentenced Corporán to a term of 200 months
imprisonment on Counts I and II. The court also imposed two
terms of supervised release: three years on Count I and five
years on Count II, to be served concurrently. Corporán filed a
timely notice of appeal on February 21, 1997.
I. Elements of the Federal Crime of Hostage Taking
Defendant argues that the indictment fails to allege
one of the essential elements of the crime of hostage taking --
the so-called international element, see 18 U.S.C. § 1203(b)(2),
infra -- rendering it fundamentally defective and requiring us
to reverse his conviction notwithstanding his guilty plea.
Section 1203 of 18 U.S.C., the federal statute
criminalizing hostage taking, states, in relevant part,
(a) Except as provided in subsection (b) of
this section, whoever, whether inside or
outside the United States, seizes or detains
and threatens to kill, to injure, or to
continue to detain another person in order
to compel a third person or a governmental
organization to do or abstain from doing any
act as an explicit or implicit condition for
the release of the person detained, or
attempts or conspires to do so, shall be
punished by imprisonment for any term of
years or for life and, if the death of any
person results, shall be punished by death
or life imprisonment.
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....
(b)(2) It is not an offense under this
section if the conduct required for the
offense occurred inside the United States,
each alleged offender and each person seized
or detained are nationals of the United
States, and each alleged offender is found
in the United States, unless the
governmental organization sought to be
compelled is the Government of the United
States.
18 U.S.C. § 1203. Defendant points out that the indictment
fails to allege that he or any other person involved in the
kidnaping of Carlos de la Rosa Berbera were not nationals of the
United States (the so-called “international element,” see 18
U.S.C. § 1203(b)(2)). Defendant argues that the fact that an
alleged offender or victim of the hostage taking is a non-U.S.
national is an essential jurisdictional element of the offense,
and, as such, had to be alleged in the indictment in order to
comport with due process. See United States v. Mojica-Baez, 229
F.3d 292, 309 (1st Cir. 2000) (citing Hamling v. United States,
418 U.S. 87, 117-18 (1974) and United States v. Hess, 124 U.S.
483, 487 (1888)). See also United States v. Penagaricano-Soler,
911 F.2d 833, 839-40 (1st Cir. 1990) (citing cases).
The government does not dispute that the indictment
fails to allege facts showing compliance with the international
aspect of the hostage taking statute, but contends that this
aspect need not be pleaded as it is an affirmative defense only.
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According to the government, the defendant has the burden to
allege and prove that his case falls within the statutory
exception as defined by 18 U.S.C. § 1203(b)(2) – that all
offenders and victims of the crime were United States nationals.
On different facts, the absence of an allegation in the
indictment that at least one alleged offender or victim was a
non-U.S. national might be cause for concern. Compare United
States v. Vuitch, 402 U.S. 62, 70 (1971) (stating as a “general
guide to the interpretation of criminal statutes that when an
exception is incorporated in the enacting clause of a criminal
statute, the burden is on the prosecution to plead and prove
that the defendant is not within the exception”) with United
States v. Santos-Riviera, 183 F.3d 367, 370 (5th Cir. 1999)
(holding that the exception incorporated into the enacting
clause of the Hostage Taking statute is not an essential element
of the offense for which the government bears the burden of
proof). Given Vuitch, it is arguable that the Fifth Circuit’s
reasoning in Santos-Riviera was incorrect.
But we need not and do not decide that issue at this
time. The uncontraverted facts of record leave no doubt that
even if the so-called international element should have been
pleaded in the indictment, any error resulting from that
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omission was harmless. See Mojica-Baez, 229 F.3d at 311
(holding that failure of indictment to allege an element of the
offense is subject to harmless error review where the indictment
otherwise provided the defendants with fair notice of the
charges against them). Corporán freely admitted to the court
that he was a national of the Dominican Republic both at his
change of plea hearing and again at sentencing. That he is not
a United States national is undisputed. The international
element of the statute -- even assuming arguendo that it should
have been pleaded in the indictment -- has been plainly
satisfied, despite the government’s failure to plead it
expressly. Nothing in the record suggests that Corporán could
in any way have been prejudiced by the indictment’s failure to
have alleged his Dominican citizenship. Accordingly, this claim
of error furnishes no basis for reversal. See id.
II. Rule 11 Colloquy
Defendant’s second issue on appeal concerns the
validity of his guilty plea. Corporán contends that his Rule 11
colloquy before the district court was fatally flawed in two
respects: (1) the district court failed to provide a meaningful
explanation of the charges to which Corporán was pleading
guilty, and (2) the district court failed to advise Corporán,
pursuant to Federal Rule of Criminal Procedure 11(c)(5), that as
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a consequence of his oath, he could be subject to a charge of
perjury in the event of any false answers. Defendant failed to
raise these issues below1, hence, our review is governed by the
plain error standard. See United States v. Savinon-Acosta, 232
F.3d 265, 268 (1st Cir. 2000) (“Where the error was not called
to the district court's attention, appellate review is governed
by the plain error standard, which requires not only an error
affecting substantial rights but also a finding by the reviewing
court that the error has seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.")
(alteration in original). Having reviewed the record, we do not
find plain error.
Corporán’s first attack on his plea engages one of Rule
11's core concerns -- whether the defendant understood the
nature of the charges against him. See, e.g., United States v.
Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000) (“[A] core
concern of Rule 11 . . . includes ensuring that the defendant
understands the elements of the charges that the prosecution
1 We note that post-sentencing, on February 21, 1997,
defendant did file a pro se Motion to Set Aside Sentence, Reduce
Sentence or in the Alternative to Allow Defendant to Withdraw
His Plea. The substance of that motion concerned the alleged
misunderstandings between Corporán, his counsel and the United
States Attorney regarding the recommended sentencing guideline
range for the crimes charged. That motion did not direct the
district court’s attention to the alleged infirmities in the
Rule 11 colloquy that Corporán addresses in this appeal.
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would have to prove at trial.”)(quotation marks and citations
omitted). Here, we find nothing in the record of the Rule 11
colloquy to indicate that the district court’s description of
the offenses charged was inadequate to provide the defendant
with an understanding of the elements material to his case.
It is true, as defendant contends, that the district
court failed to recite 18 U.S.C. § 1203(b)(2)’s international
aspect, i.e., that to be convicted under 18 U.S.C. § 1203 an
offender or a victim must be a non-United States national. But
as already pointed out, supra Part I, the existence of the
international element was established by Corporán’s voluntary
admission in open court. There was no way for Corporán to have
altered his citizenship however much he learned about this
aspect of the charges against him. The court’s failure to
recite the international aspect did not constitute plain error.
Next, Corporán argues that the district court’s bald
reading of the indictment, without providing any supplemental
explanation or the meaning of key terms, such as “conspiracy,”
“aiding and abetting,” or “willfully and intentionally,” was
insufficient to apprise him of the charges of hostage taking.
In some cases, however, simply reading an indictment may satisfy
Rule 11's requirement. See Fed. R. Crim. P. 11 advisory
committee notes to 1974 Amendments (“The method by which the
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defendant’s understanding of the nature of the charge is
determined may vary from case to case, depending on the
complexity of the circumstances and the particular defendant.
In some cases, a judge may do this by reading the indictment. .
. .”). This is such a case. Although, “[c]harges of a complex
nature, including esoteric terms unfamiliar to the lay mind, may
require greater explication by the bench,” United States v.
Mack, 635 F.2d 20, 25 (1st Cir. 1980), here, the charges against
Corporán were not complicated. See United States v. Allard, 926
F.2d 1237, 1245 (1st Cir. 1991). See also Mack, 635 F.2d at 25
& n. 2 (1st Cir. 1980). The terms to which the defendant points
-- such as “conspiracy” and “aiding and abetting” -- although
terms of art, were not hard to understand in the context used.
This is not a case like United States v. Gandia-Maysonet in
which the judge and the government throughout the Rule 11
colloquy affirmatively misstated the newly amended mens rea
element of the crime. See Gandia-Maysonet, 227 F.3d at 4-5
(where the Rule 11 colloquy failed to put the defendant on
notice that to be convicted under 18 U.S.C. § 2119, as amended
only six months previously, the government had to prove the
aggravated intent of causing death or serious bodily harm).
That the court did not embellish the indictment’s recitation of
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the offenses charged does not, in these circumstances, support
Corporán’s claim of a Rule 11 error.
We further note that the government thoroughly recited
the facts underlying its case against Corporán – facts to which
Corporán acceded and which, if proved, would support a
conviction under 18 U.S.C. § 1203. These factual recitations
helped explicate the district court’s reading of the charges by
fleshing out the nature of the conduct to which Corporán was
pleading guilty. See Mack, 635 F.2d at 25. Cf. Allard, 926
F.2d at 1245 (determining that the prosecutor’s recitation and
defendant’s admission of the facts underlying the charge
insufficient to educate the defendant of the offense of
defrauding a hospital because the fraudulent scheme described by
the government concerned mailing false licenses to the Board of
Registration in Medicine and not to a hospital).
The district court found defendant to be alert and
intelligent, a factor further confirming defendant’s
understanding of the charges. We find no error, let alone plain
error that affected the fairness, integrity, or public
reputation of the judicial process. See United States v. Perez-
Carrera, No. 98-1788, slip. op. at 4 & n. 2 (1st Cir. 2001);
Savinon-Acosta, 232 F.3d at 268. We hold that the Rule 11
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colloquy fairly put defendant on notice of the substance of the
crimes for which he was charged.
Corporán’s second attack on his plea points us to the
district court’s failure to inform the defendant that, as a
consequence of his oath, he could be subject to a charge of
perjury in the event of any false answers. See Fed. R. Crim. P.
11(c)(5). Although it seems true from the record that Corporán
was not so advised by the district court, we have held that a
technical failure such as this one, standing alone, may be
harmless error. Gandia-Maysonet, 227 F.3d at 3 (“Failures to
comply with very specific, yet technical, requirements of Rule
11 are often found ’harmless,’ Fed. R. Crim. P. 11(h).”); United
States v. Allard, 926 F.2d at 1244 (“Mere technical violations
of [Rule 11's] procedural requirements do not warrant setting
aside a plea.”). Here the question is not just whether the
error was harmless, but whether plain error was committed. As
no perjury charges are pending against Corporán (and he has not
been threatened with any), and the Rule 11 colloquy was
otherwise adequate, the district court’s omission rather
obviously does not amount to plain error.
III. Adherence to Rule 32
Corporán’s third issue on appeal alleges various
violations of Federal Rule of Criminal Procedure 32, all of
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which concern the timeliness with which the defendant was
provided with a copy of the presentence report (PSR) and the
government’s objections thereto. In general, Corporán states
that he did not have a sufficient opportunity to review his PSR
and thus he requests a remand for re-sentencing.
The record shows that the defendant’s counsel was not
served with a copy of the PSR until January 27, 1997 -- less
than a week before the February 3rd date that was scheduled for
sentencing -- and that he did not receive the government’s
objections until the morning of February 3rd. Rule 32 provides
that, unless waived, the defendant has the right to a copy of
the PSR no less than thirty-five days prior to sentencing and to
the government’s objections to the PSR no less than twenty-one
days prior to sentencing. See Fed. R. Crim. P. 32(b)(6)(A) and
(B). Corporán objected to the sentencing going forward on
February 3rd, and the district court appropriately granted him
a continuance until February 7, 1997, the date by which
Corporán’s counsel said he would be ready. Defense counsel told
the court that he needed some time to discuss the PSR with his
client and to go over what he remembered to be some agreements
with the government that were made back in October, 1996, at the
time of the guilty plea. He went on to state that he would be
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filing objections to the PSR and that he would be ready for
sentencing on February 7, 1997.
The sentencing did not in fact take place until
February 12, the February 7th date having been rescheduled after
defense counsel had sprained his ankle. On February 12, instead
of filing objections to the PSR as he said he would, defendant
told the court that he “basically agree[d] with all” of the
objections filed by the government and argued only that, as a
first offender, defendant should be sentenced at the lower end
of the agreed-to guideline range of 188 months to 235 months in
prison. Defendant now asserts that if more time had been
provided he would have filed objections to the PSR. He relies
on the pro se motion he later filed on February 21, 1997 as
support for his allegation that he would have disputed the
sentence imposed had he had more time to do so.
We find no merit in Corporán’s argument on appeal for
resentencing based upon alleged Rule 32 error. First, by
proposing and accepting the February 7th sentencing date,
Corporán waived the lengthier time period provided in Fed. R.
Crim. P. 32(b)(6)(A) and (B). The rule expressly recognizes
that a defendant may waive these longer periods. See id.
Second, at the February 3rd hearing, the district court informed
the defendant on the record that unless the government prevailed
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on its objections, the sentencing guideline range would be 188
to 235 months. To this, the defense counsel assured the court
that he had “explained to [his client] all the potential ranges
depending on the outcome of these objections.” Defendant had
notice of the sentencing range and cannot be heard now to claim
surprise. Third, on February 12, defense counsel informed the
court that “we basically agree with all of [the government’s
objections].” Defense counsel’s assurances to the district
court on both occasions conforms with the case law in this
circuit that requires the district court to ascertain from the
defendant and his counsel that they have had an opportunity to
read and discuss the PSR. See, e.g., United States v. Manrique,
959 F.2d 1155, 1157 (1st Cir. 1992) (determining that defense
counsel's statement -- "with regard to the Presentence Report
and the government's version therein the defendant virtually has
adopted the government's version" -- sufficient to establish
that counsel had read the PSR and discussed its contents with
the defendant). Fourth, at the February 12th sentencing
hearing, after defense counsel explained defendant’s position
that the appropriate sentence for a first offender is at the
lower end of the guideline range, the defendant himself, when
asked, told the judge that he had nothing else to add. For all
of these reasons, the defendant cannot now be heard to object
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that he was unfairly surprised by the sentence imposed and that
the basis of the sentence is without proper foundation. Given
defendant’s waiver, defense counsel’s assurances and defendant’s
silences during the two hearings on sentencing, we can ascertain
no plain error in the district court’s administration of Rule
32.
IV. Sentencing Error
Defendant argues, and the government agrees, that the
district judge erred in imposing a concurrent 200 month sentence
for a conviction on Count I, which charged defendant with
conspiracy in violation of 18 U.S.C. § 371, an offense that
provides for imprisonment of "not more than five years." The
judgment in this case imposed a 200 month sentence on both
counts without specifically tying that sentence to either count.
However, the docket sheet understandably describes the
disposition for Count I, Conspiracy to Defraud under 18 U.S.C.
§ 371, as being imprisonment for a term of 200 months. The same
sentence is said to have been imposed for Count II, aiding and
abetting a violation of the Hostage Taking statute, 18 U.S.C. §§
1203 and 2. Thus, the court records indicate the imposition of
concurrent sentences of 200 months each for Counts I and II,
despite the fact that Count I, charging conspiracy under 18
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U.S.C. § 371, carries a maximum penalty of only five years. 2
Corporán was properly advised at the plea colloquy that the
maximum penalty under Count I was five years. It was plain
error, therefore, to sentence Corporán under Count I to 200
months, a term of imprisonment 120 months beyond 18 U.S.C. §
371's statutory maximum. See United States v. Perez-Carrera,
No. 98-1788, slip. op. at 5-6 (1st Cir. 2001). As noted, the
government concedes that the sentence under Count I cannot
stand. We therefore remand Count I to the district court with
instructions to modify the sentence imposed under Count I so as
not to exceed imprisonment for more than five years. See Fed.
R. Crim. P. 35(a). In all other respects, the conviction and
sentence are affirmed.
So ordered.
2 Defendant was not charged with conspiracy under 18 U.S.C.
§ 1203, the hostage taking statute itself, which includes within
its proscription the conspiracy to commit the act of hostage
taking and which is punishable by life in prison. See 18 U.S.C.
§ 1203.
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