United States v. Fonseca ( 2022 )

United States Court of Appeals
For the First Circuit
No. 19-1791
UNITED STATES OF AMERICA,
Appellee,
v.
LAWRENCE ANDERSON FONSECA,
f/k/a Lawrence Anderson Fonseca-Garcia,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Lipez, Circuit Judges.
José R. Olmo-Rodríguez for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom W. Stephen Muldrow, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.
September 8, 2022
LIPEZ, Circuit Judge. Lawrence Anderson Fonseca and
four co-defendants were charged with conspiring to import cocaine
into the United States, in violation of 21 U.S.C. §§ 959, 960 and
963, and money laundering to promote this conspiracy in violation
of 18 U.S.C. § 1956(a)(2)(A). Following the denial of his motion
to dismiss the indictment, Fonseca pleaded guilty to the conspiracy
count. He subsequently filed several motions to withdraw his plea,
each of which was denied by the district court. On appeal, Fonseca
argues that he should be allowed to withdraw his guilty plea and
that the indictment against him should be dismissed. Although our
rationale on the plea withdrawal request differs somewhat from
that of the district court, we affirm.
I.
A. The Underlying Conviction
Fonseca is a citizen and resident of the British Virgin
Islands ("BVI"). As set forth in the statement of facts
incorporated into his plea agreement, Fonseca and his co-
defendants conspired, from approximately May 2012 to July 2014, to
import at least five kilograms of cocaine into the United States.
The statement of facts identifies several overt acts committed in
the United States in furtherance of the conspiracy, although
ultimately no drugs were ever imported into the country. The
government has not disputed that Fonseca lived in the BVI
throughout the relevant timeframe.
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Fonseca first moved to dismiss the indictment in October
2015. Relying on principles of extraterritorial jurisdiction, he
argued that the district court lacked subject matter jurisdiction
over the case because he was a citizen and resident of the BVI
and, he claimed, had taken no actions with an actual or intended
effect in the United States. He also argued that any overt acts
undertaken in the United States by his co-conspirators were too
insignificant to support subject matter jurisdiction over him.
Finally, Fonseca argued that the court lacked personal
jurisdiction over him because he had been unlawfully transported
to Puerto Rico after being detained by United States agents in the
Dominican Republic, and that the court should, at a minimum, hold
an evidentiary hearing on this issue. The district court denied
these claims in March 2016.
Fonseca pleaded guilty in August 2016 with the
assistance of counsel. As described above, the plea agreement
incorporated a statement of facts, which Fonseca "adopt[ed] . . .
as his own testimony." In this statement, he acknowledged that he
had conspired to import cocaine into the United States and that he
or his co-conspirators had engaged in several overt acts involving
money transfers to or from the United States. The transactions
included Fonseca's receipt of a $5,000 wire transfer from
California, sent by his co-defendant Terrence Edwards, and a
$35,000 transfer of funds from co-defendant Justin Gumbs to the
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United States bank account of Fonseca's wife and co-defendant,
Sharon Rodriguez. The plea agreement also included a waiver of
appeal provision, in which Fonseca agreed that if his sentence was
consistent with (or more lenient than) the recommendation set forth
in the plea agreement, he "knowingly and voluntarily waive[d] and
surrender[ed] his right to appeal the judgment and sentence in
this case." On the recommendation of a magistrate judge, the
district court accepted his guilty plea.
B. Fonseca's Plea Withdrawal Motions
In March 2017, several days before his scheduled
sentencing date, Fonseca filed his first pro se motion to withdraw
his plea, as well as a motion to "withdraw" his counsel from the
case. In the plea withdrawal motion, he argued that he was
innocent, claiming that his involvement in the conspiracy was
"[i]nconclusive," and that his attorney had misled and pressured
him into pleading guilty and had not adequately investigated the
allegations.
The district court postponed the sentencing hearing
pending a decision on these motions and referred the attorney
withdrawal motion to a magistrate judge for disposition, who denied
it after a hearing. The district court denied the plea withdrawal
motion, finding that Fonseca had pleaded guilty knowingly,
voluntarily, and intelligently. The court noted that Fonseca's
"general, unsubstantiated" statement that he was innocent was not
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entitled to any weight and that he had not explained why he had
adopted the statement of facts in his plea agreement admitting to
the offense conduct. The district court also found that Fonseca
had not proffered any evidence that he had been confused about the
accusations or had been unduly pressured into pleading guilty.
Finally, the court found that the delay of more than seven months
between Fonseca's guilty plea and the motion weighed against
withdrawal, as did the prejudice to the government if withdrawal
were permitted (i.e., the court's belief that the government would
be prejudiced by the additional cost to prepare for trial).
In May 2017, Fonseca again moved pro se to withdraw his
guilty plea and asserted various defenses. Several months later,
before that motion was decided, he filed a third pro se motion
raising similar arguments and emphasizing the court's purported
lack of personal jurisdiction over him. The court denied both
motions in November 2017, concluding that Fonseca had not put forth
any new arguments.
In February 2018, four days before Fonseca's rescheduled
sentencing date, new counsel for Fonseca appeared and filed a
request to again continue sentencing, which the court granted.
Following several more postponements allowed by the court, Fonseca
filed a fourth motion to withdraw his guilty plea.
In support of his new request, Fonseca cited statements
made by his co-defendant Edwards, who had testified at the
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sentencing hearing of co-defendant Gumbs. At this sentencing
hearing -- which occurred in August 2017, between Fonseca's second
and third plea withdrawal requests -- Edwards made several comments
that Fonseca claims are exculpatory as to him. First, Edwards
testified that he had traveled to the BVI in October 2012 to help
Fonseca and Gumbs obtain narcotics but found that "there was
nothing" when he arrived. Edwards also stated that, at several
points during the conspiracy, Edwards had told Gumbs that he
believed Gumbs was lying about whether Gumbs and Fonseca would
ultimately procure drugs. Fonseca argued that this testimony
showed that Fonseca's communications with his co-defendants about
importing drugs were actually part of a scam to steal money from
them -- and, hence, that Fonseca had not taken part in any actual
conspiracy to import drugs.
The new request was referred to a magistrate judge, who
found that Fonseca's assertion that he is innocent and the timing
of his request -- which was made after he learned of Edwards's
testimony -- weighed in favor of withdrawal. However, the
magistrate judge found that Fonseca's plea had been knowing and
voluntary and that Edwards's testimony was not new, nor was it
exculpatory -- findings that weighed against withdrawal.1 The
1 Nevertheless, as we will discuss in more detail, the
magistrate judge -- and later the district court -- appears to
have erroneously believed that the mere invocation of an innocence
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magistrate judge then considered the question of prejudice to the
government and concluded that the government would not be
significantly prejudiced by withdrawal. Weighing these factors
together, the magistrate judge recommended that the district court
grant Fonseca's motion.
The district court took a different view. Although it
agreed with the magistrate judge's assessment of several of the
factors militating for and against withdrawal, it disagreed that
the timing of the request favored withdrawal. The district court
also found that Fonseca had not adequately explained either the
nearly one-year gap between Edwards's testimony and Fonseca's
fourth withdrawal motion, or the initial seven-month delay between
the plea itself and his first withdrawal motion in March 2017.
Further, the district court found that the government would be
prejudiced by withdrawal. It therefore denied Fonseca's request
to withdraw his plea.
Fonseca filed two motions for reconsideration, both of
which were denied. In June 2019, he was sentenced to 120 months'
imprisonment, which was consistent with the recommendation set
forth by the government in his plea agreement. This appeal
followed.
claim was sufficient to tilt this factor in Fonseca's favor,
regardless of the strength of the claim.
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II.
Fonseca raises three arguments on appeal. He claims
that the district court (1) abused its discretion by denying his
request to withdraw his guilty plea,2 (2) erred in denying his
motion to dismiss for lack of subject matter jurisdiction, and (3)
erred in denying his motion to dismiss for lack of personal
jurisdiction.
A. Plea Withdrawal
Before turning to the merits of Fonseca's plea
withdrawal claim, we briefly address the waiver-of-appeal
provision in his plea agreement, which prohibits an appeal from
the "judgment and sentence" in his case. Unlike most other
circuits, we have never squarely addressed whether an appeal from
the denial of a motion to withdraw a plea constitutes a challenge
to a defendant's "judgment" or "conviction" as a matter of law.3
2 While Fonseca has moved to withdraw his plea several times,
the arguments he raises on appeal pertain to his fourth plea
withdrawal request, and he does not renew any arguments that were
specific to any of his earlier requests. Accordingly, our analysis
is limited to his fourth motion. See Young v. Wells Fargo Bank,
N.A., 828 F.3d 26, 32 (1st Cir. 2016) (stating that we do not
consider arguments for reversing a district court's decision that
were not raised in a party's opening brief).
3 We have previously suggested that there is a "strong
argument" that an appeal from the denial of a motion to withdraw
a plea is encompassed by the language of an appellate waiver
barring challenges to the conviction and sentence. See United
States v. Caramadre, 807 F.3d 359, 377 n.9 (1st Cir. 2015).
Indeed, all other circuits to have addressed the issue have found
that a plea withdrawal motion constitutes a challenge to the
defendant's conviction. See, e.g., United States v. Alcala, 678
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If it does, then Fonseca's motion would fall within the scope of
the appeal waiver, and we would ordinarily enforce this provision
so long as it was entered into knowingly and voluntarily, and so
long as doing so would not work a "miscarriage of justice." See
United States v. Teeter, 257 F.3d 14, 23-26 (1st Cir. 2001).4
However, the government has conceded that we should
proceed directly to the merits of Fonseca's appeal on the motion
to withdraw issue -- i.e., the question of whether the district
court abused its discretion in denying Fonseca's motion to withdraw
his guilty plea. In making this concession, the government relies
on a series of cases in which we have held that "a court may opt
to go directly to the merits of an appeal where a defendant who
has entered a guilty plea and agreed to waive his right to appeal
seeks to challenge an aspect of the plea which, 'if successful,
would invalidate both the plea itself and the waiver of his right
to appeal.'" United States v. Sevilla-Oyola, 770 F.3d 1, 10 n.17
F.3d 574, 578 (7th Cir. 2012) (holding that "a defendant challenges
his conviction when he challenges the district court's denial of
his motion to withdraw a plea"); United States v. Toth, 668 F.3d
374, 378–79 (6th Cir. 2012) (same, and collecting cases from other
circuits).
4 The "miscarriage of justice" exception to enforcement of an
otherwise valid appellate waiver "requires a strong showing of
innocence, unfairness, or the like." Sotirion v. United States,
617 F.3d 27, 36 (1st Cir. 2010) (quoting United States v. Gil-
Quezada, 445 F.3d 33, 37 (1st Cir. 2006)). We express no view on
whether Fonseca could meet this requirement, as he has not raised
this issue.
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(1st Cir. 2014) (quoting United States v. Chambers, 710 F.3d 23,
27 (1st Cir. 2013)).
The government is correct that we have previously held
that a motion to withdraw a guilty plea is a challenge to the
plea's validity when the defendant argues that the plea was not
entered into knowingly and voluntarily. See Chambers, 710 F.3d at
27. Likewise, we have held that a motion to withdraw a guilty
plea on the ground that the district court failed to ascertain a
sufficient factual basis for the plea is also a challenge to the
plea's "validity." See United States v. Torres-Vázquez, 731 F.3d
41, 44 (1st Cir. 2013). However, our case law has yet to directly
address the specific scenario raised here: whether a claim of newly
discovered exculpatory evidence underlying a claim of innocence,
asserted as part of the grounds for permitting the withdrawal of
a guilty plea, is a challenge to the plea's validity.
We need not decide whether Fonseca's innocence claim
falls squarely within this line of cases, however, because -- even
assuming we were to resolve this question favorably to Fonseca and
conclude that the waiver of appeal provision in the plea agreement
does not bar an appeal from the denial of his motion to withdraw
the plea -- his argument that the district court abused its
discretion fails on the merits. We therefore accept the
government's concession and assume, as do the parties, that
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Fonseca's claim is reviewable for the purposes of resolving this
appeal.
1. Legal Standard
We review the district court's denial of a request to
withdraw a guilty plea for abuse of discretion. United States v.
Mendoza, 963 F.3d 158, 161 (1st Cir. 2020). The ultimate question
is whether the defendant has demonstrated that a "fair and just
reason" for withdrawal exists. See United States v. Parrilla-
Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (quoting Fed. R. Crim. P.
32(d)). To assess whether that burden has been met, courts
consider the totality of the circumstances, including: "(1)
whether the plea was knowing and voluntary and in compliance with
[Federal] Rule [of Criminal Procedure] 11, (2) the strength of the
reason for withdrawal, (3) the timing of the motion to withdraw,
(4) whether the defendant has a serious claim of actual innocence,
(5) whether the parties had reached (or breached) a plea agreement,
and (6) whether the government would suffer prejudice if withdrawal
is allowed." United States v. Gardner, 5 F.4th 110, 118 (1st Cir.
2021).5 The most important consideration is whether the plea was
5 At times we have suggested that district courts are required
to defer consideration of prejudice to the government until after
the defendant has made a preliminary showing of a fair and just
reason for withdrawal. See United States v. Merritt, 755 F.3d 6,
9 (1st Cir. 2014). At other times we have treated the presence or
absence of prejudice to the government holistically, as a relevant
factor to be weighed against the others in determining whether a
fair and just reason for withdrawal exists. See United States v.
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knowing and voluntary. See United States v. Isom, 580 F.3d 43, 52
(1st Cir. 2009).
2. The Strength of the Reason for Withdrawal and
a Serious Claim of Actual Innocence
Fonseca primarily argues that he should be allowed to
withdraw his guilty plea because the testimony of co-defendant
Edwards provided exculpatory evidence that was unavailable to him
when he pleaded guilty. As previously described, Edwards testified
at co-defendant Gumbs's sentencing hearing that, in October 2012
when Edwards first traveled to the BVI to help Fonseca procure
drugs, "there was nothing" -- i.e., Fonseca and Gumbs had not
identified or secured any drugs. He also testified that he could
never be sure when Gumbs was lying about his plans to import drugs
with Fonseca. Fonseca argues that this testimony supports his
claim that his interactions with Edwards and others were part of
a scam, that he never intended to import drugs, and that he pleaded
guilty to help secure a more favorable plea deal for his wife (co-
defendant Rodriguez).6 He maintains that he would not have pleaded
Dunfee, 821 F.3d 120, 127 (1st Cir. 2016) (per curiam); compare
Gardner, 5 F.4th at 118-19 & n.9 (considering these factors
holistically), with id. at 122 (Lynch, J., dissenting) (arguing
that a court may consider prejudice only if the totality of the
other factors weighs in favor of withdrawal). This case does not
require us to resolve this apparent uncertainty in our case law,
as the totality of the circumstances weigh against Fonseca's
request regardless of which approach is taken.
6 Fonseca also made general assertions of innocence in his
first three plea withdrawal motions, but these motions did not
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guilty if Edwards's testimony had been available to him at the
time.
A court must assess the force and plausibility of the
reasons proffered for withdrawal. See United States v. Isom, 85
F.3d 831, 837 (1st Cir. 1996). Here, because the primary reason
for withdrawal Fonseca proffered -- Edwards's testimony -- is
inextricably bound up with his claim of innocence, we consider the
"strength of the reason" and the "serious claim of actual
innocence" factors together.
The district court found that Fonseca's explanation for
the withdrawal request was implausible. It noted that the
substance of Edwards's testimony was not new. In so concluding,
it relied on summaries of recorded phone calls between Edwards and
Gumbs that were provided to Fonseca in discovery prior to his
plea.7 These summaries included conversations between Edwards and
Gumbs in the spring of 2014 discussing Fonseca's past failure to
secure drugs. During these conversations, Edwards told Gumbs that,
among other things, Fonseca was "full of shit" and did not have
any drugs. Elsewhere in the call summaries, Edwards expresses to
Gumbs that he does not trust Fonseca and is tired of dealing with
develop the argument that he raised in his fourth motion, and on
appeal, regarding the efforts to "scam" his co-defendants.
7Fonseca's plea agreement confirmed that "[f]ull discovery
ha[d] been provided to the defendant."
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him. The district court further concluded that, "while portions
of Edwards's testimony may support [Fonseca's] claim of innocence,
they are certainly not exculpatory." Finally, the district court
noted Fonseca's shifting explanations for his guilty plea. In his
first two motions to withdraw his plea, Fonseca had argued that he
had been pressured to plead guilty by his counsel. In his fourth
plea withdrawal request, however, Fonseca conceded that his plea
had been knowing and voluntary, and instead asserted for the first
time -- and with no record support -- that he had pleaded guilty
to secure a better deal for Rodriguez.
We see no error in the district court's consideration of
Fonseca's proffered reasons for withdrawal. The statements
Fonseca received in discovery were substantially similar to
Edwards's testimony, and Fonseca therefore could have made the
same arguments about his lack of intent before he pleaded guilty.
See United States v. Adams, 971 F.3d 22, 38-39 (1st Cir. 2020)
(affirming denial of a plea withdrawal motion based on evidence to
which the defendant had access before his plea). Nor did the
district court err in finding that Fonseca's evolving rationales
for seeking to withdraw his guilty plea raised concerns about the
veracity of his newly proffered reasons. Cf. Parrilla-Tirado, 22
F.3d at 371 ("[P]lausibility [of the asserted reasons for
withdrawal] must rest on more than the defendant's second thoughts
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about some fact or point of law, or about the wisdom of his earlier
decision [to plead guilty]." (internal citations omitted)).
The district court's conclusion that Edwards's testimony
was not "exculpatory" is also supportable. Edwards's testimony,
if credited, would establish that Edwards harbored some mistrust
of Fonseca, but this fact is not inherently exculpatory. Moreover,
other portions of Edwards's testimony could undermine Fonseca's
claim of innocence. For example, Edwards also attested to the
authenticity of a photograph of what is alleged to be a brick of
cocaine in Fonseca's car.8
As to the "serious claim of actual innocence" factor,
the district court did not explicitly analyze whether Fonseca had
raised such a claim. Instead, it determined that Fonseca's
repeated assertions of his innocence since pleading guilty weighed
in favor of withdrawal, without considering whether these
assertions were "serious." We have made clear that "weak and
implausible assertions of innocence" do not weigh in favor of
withdrawal. See United States v. Sanchez-Barreto, 93 F.3d 17, 24
(1st Cir. 1996); see also United States v. Gates, 709 F.3d 58, 69
(1st Cir. 2013) ("Merely voicing a claim of innocence has no weight
in the plea-withdrawal calculus; to be given weight, the claim
must be credible."). The district court therefore erred in
8 Fonseca disputed that this was cocaine before the district
court.
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crediting Fonseca for merely asserting his innocence. See United
States v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987) (noting that
the "court did not abuse its discretion in refusing to give weight
to a self-serving, unsupported claim of innocence raised
judicially for the first time after the Rule 11 hearing").
However, we take the district court's supportable conclusion that
Edwards's testimony was not exculpatory as tantamount to a finding
that Fonseca's claim of innocence -- which is primarily supported
by Edwards's testimony -- is not "serious." We therefore conclude
that the district court supportably found that Fonseca had not
proffered a "serious claim of actual innocence" notwithstanding
the fact that it also erroneously credited him for the mere
assertion of his innocence. See Sanchez-Barreto, 93 F.3d at 24(suggesting that district courts are better positioned to
determine whether invocations of innocence are credible and
affirming a district court's assessment that the defendants'
claims were too weak to favor withdrawal).9
3. The Remaining "Fair and Just Reason" Factors
We briefly address the remaining factors assessed by the
district court: the timing of Fonseca's motion, whether his plea
9 We note that we are particularly reluctant to disturb the
district court's conclusion where, as here, the claim of innocence
contradicts statements made or adopted by Fonseca in the plea
agreement and at the change of plea hearing. See United States v.
Santiago Miranda, 654 F.3d 130, 139 (1st Cir. 2011).
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was entered knowingly and voluntarily, and any prejudice to the
government.
i. The Timing of the Motion
Courts consider the length of time between the entry of
a guilty plea and a motion for withdrawal. An "excessive delay
saps strength from any proffered reason for withdrawal." United
States v. Doyle, 981 F.2d 591, 595 (1st Cir. 1992).
The district court found that this factor also weighed
against withdrawal, noting that, by the time Fonseca filed his
fourth withdrawal motion in August 2018, roughly six months had
passed since his new attorney's notice of appearance and over one
year had passed since Gumbs's sentencing hearing, at which Edwards
had testified. The district court reasoned that Fonseca had not
justified either of these delays, nor had he justified the seven-
month delay between the entry of the plea itself and his first
plea withdrawal request.10
The district court reasonably weighed these delays
against withdrawal. Even assuming, arguendo, that Fonseca only
needed to justify the roughly year-long gap between Edwards's
testimony and his fourth withdrawal request (as opposed to the
10 In this respect, the district court's reasoning differed
from that of the magistrate judge. The magistrate judge
recommended that the timing factor be weighed in Fonseca's favor
because his motion came after he learned of Edwards's testimony.
We find the district court's reasoning more persuasive.
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longer delay from the entry of the plea itself), Fonseca has failed
to proffer any reason for this lengthy delay. Nor has he justified
the months-long delay between his new attorney's February 2018
notice of appearance and the motion. See, e.g., United States v.
Dunfee, 821 F.3d 120, 131 (1st Cir. 2016) (per curiam) (holding
that an approximately two-month delay between entry of the guilty
plea and defendant's motion to withdraw weighed against
withdrawal); United States v. Pagan-Ortega, 372 F.3d 22, 31 (1st
Cir. 2004) (same).
ii. Knowing and Voluntary
Fonseca concedes that his plea was knowing and
voluntary. Given that the knowing and voluntary nature of a plea
is the "most important" issue to consider in the withdrawal
analysis, the district court properly reasoned that Fonseca's
undisputedly knowing and voluntary plea weighed heavily against
withdrawal. See Isom, 580 F.3d at 52.
iii. Prejudice to the Government
The district court also addressed the issue of
prejudice. It found that the government would be prejudiced by
the burden of trial preparation and the unavailability of one of
its witnesses, Peter Lev, who had since been deported. Fonseca
objects to the district court's reliance on Lev's absence because
the government did not raise this argument before the magistrate
judge and introduced it for the first time in its objections to
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the report and recommendation. Fonseca is correct that the
government has waived this argument. See United States v. Rosado-
Cancel, 917 F.3d 66, 69 (1st Cir. 2019) (deeming an argument waived
when it was not properly raised before a magistrate judge).
Moreover, in the absence of an argument regarding Lev, the
government's general invocation of prejudice from its trial
preparation obligations falls short of tilting this factor in its
favor. See Gardner, 5 F.4th at 118-19 (noting that this factor
did not weigh in the government's favor when the government could
show no prejudice "beyond the burdens that inevitably accompany
any withdrawal [such as] . . . proceeding to trial").
* * *
In sum, the district court's analysis of the plea
withdrawal motion was flawed in two respects. First, the district
court erred in concluding that Fonseca's mere assertion of
innocence weighed in favor of withdrawal, despite the substantive
weakness of his claim. Second, it erred in its prejudice analysis
by assigning weight to a waived argument and to garden-variety
trial preparation by the government. However, the district court
properly found that Fonseca's reasons for seeking withdrawal
lacked plausibility, that his claim of innocence was not strong,
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that his motion was belated, and that his plea was voluntary -- all
factors that properly weigh against withdrawal.11
Ultimately, the district court's errors were immaterial
to the result it reached. Its error in assigning weight to
Fonseca's repeated assertions of innocence was favorable to
Fonseca. If the court had properly declined to credit Fonseca's
substantively weak assertion of innocence, the fair and just reason
for withdrawal calculus would have weighed even more heavily
against him. And while the court applied undue weight to the
government's general invocation of prejudice, this error in
finding prejudice to the government was also immaterial under the
circumstances. The mere absence of prejudice to the government,
without more, does not suffice to establish a "fair and just
reason" for withdrawal. See Nunez Cordero v. United States, 533
F.2d 723, 726 (1st Cir. 1976) (rejecting the premise that "absent
a showing of prejudice by the government, withdrawals of pleas
before sentence should be granted as a matter of course").
In criminal matters subject to the trial court's
discretion, we typically find an abuse of discretion only when the
court commits a "material error of law" or some sort of "meaningful
error in judgment." United States v. Jordan, 813 F.3d 442, 445
11 We also note that the parties reached a plea agreement,
which was not breached. Although the district court did not
analyze this factor, we have held that this fact, too, weighs
against withdrawal. See Isom, 85 F.3d at 839.
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(1st Cir. 2016) (quoting Ruiz–Troche v. Pepsi Cola of P.R. Bottling
Co., 161 F.3d 77, 83 (1st Cir. 1998)) (applying this standard with
regard to the exclusion of expert testimony); see also United
States v. Walker, 665 F.3d 212, 222-23 (1st Cir. 2011) (adopting
a similar standard regarding motions for change of venue). Here,
although the district court erred in weighing two of the relevant
factors, these errors, for the reasons we have explained, were not
material errors of law or judgment that undermined the court's
proper exercise of discretion in denying the motion to withdraw
the guilty plea. Hence, we find no abuse of discretion, and a
remand would serve no purpose. Cf. United States v. Gendraw, 337
F.3d 70, 72-73 (1st Cir. 2003) (noting that we are not required to
remand when the record contains no basis to support a different
decision).
B. Subject Matter Jurisdiction
The parties agree that the appeal waiver provision in
Fonseca's plea agreement does not bar his challenge to the district
court's subject matter jurisdiction, an issue that may be raised
at any time. See United States v. González, 311 F.3d 440, 442
(1st Cir. 2002). We review the court's jurisdictional ruling de
novo. See United States v. Vargas-De Jesús, 618 F.3d 59, 63 (1st
Cir. 2010).
Fonseca claims that the district court lacked subject
matter jurisdiction over the conspiracy charge because he never
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entered the United States during the conspiracy and did not intend
for his actions to have an impact in the United States. This
argument has no merit. Federal district courts have jurisdiction
over "all offenses against the laws of the United States." 18
U.S.C. § 3231. "Thus, if an indictment or information alleges the
violation of a crime set out 'in Title 18 or in one of the other
statutes defining federal crimes,' that is the end of the
jurisdictional inquiry" on a motion to dismiss. See United States
v. George, 676 F.3d 249, 259 (1st Cir. 2012) (quoting González,
311 F.3d at 442); see also United States v. Frias, 521 F.3d 229,
235-36 (2d Cir. 2008) (stating that an indictment that "plainly
track[ed] the language of the statute and state[d] the time and
place of the alleged [crime]" was sufficient to invoke the district
court's jurisdiction).
Fonseca does not contest that the indictment tracked the
language of 21 U.S.C. §§ 959, 960, and 963, the statutes he was
charged with violating. Nor does he raise any other challenge to
the indictment itself. He instead disputes whether the government
would ultimately be able to prove that he personally acted with
the intent to cause any effects in the United States. This
argument goes to the sufficiency of the evidence, not to whether
the indictment -- which was facially valid -- should be dismissed.
See United States v. Stewart, 744 F.3d 17, 22 (1st Cir. 2014)
("[A]t the motion-to-dismiss stage, the allegations are taken as
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true, leaving for the jury the questions of the actual scope of
the conspiratorial agreement . . . .").
Moreover, Fonseca concedes that a federal court has
jurisdiction over a conspiracy, and every member of that
conspiracy, if at least one overt act alleged to be in furtherance
of the conspiracy was committed in the United States. See United
States v. Inco Bank & Tr. Corp., 845 F.2d 919, 920-21 (11th Cir.
1988) (per curiam); see also Rivera v. United States, 57 F.2d 816,
819 (1st Cir. 1932) ("The place of the conspiracy is immaterial
provided an overt act is committed within the jurisdiction of the
court."). And he does not dispute that at least some of his co-
defendants committed overt acts in the United States that were
alleged to be part of the conspiracy. Indeed, he stipulated in
his plea agreement that his co-defendants transferred at least
$40,000 either to or from the United States, with the intent to
further a drug trafficking conspiracy.
Fonseca attempts to avoid this precedent by arguing that
the acts of his co-conspirators were so insignificant and
inconsequential that the exercise of jurisdiction over him would
be unreasonable as a matter of law. In so arguing, Fonseca appears
to invoke the territorial effects doctrine, which holds that "a
sovereign only possesses jurisdiction to prosecute a crime where
. . . the effect within the territory is substantial." United
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States v. Woodward, 149 F.3d 46, 66 (1st Cir. 1998) (internal
quotation marks omitted).
However, Fonseca provides no support for the proposition
that the $40,000 in transferred funds referenced in his plea
agreement -- the existence of which he has not disputed -- is
somehow insignificant as a matter of law. Indeed, Fonseca cites
no case in which any monetary amount was considered so
insignificant as to render unreasonable the exercise of
jurisdiction over a drug trafficking offense. And while he argues
that the amount of money transferred by his co-conspirators was
insufficient to purchase a distribution-level quantity of cocaine,
this argument could only conceivably relate to the scope of the
conspiracy and whether these overt acts furthered the conspiracy's
objectives. But, as we have discussed, these questions are
inappropriate for resolution at the motion to dismiss stage. See
Stewart, 744 F.3d at 22.
The district court properly denied Fonseca's motion to
dismiss for lack of subject matter jurisdiction.
C. Personal Jurisdiction
Fonseca also argues that the district court should have
divested itself of personal jurisdiction over him or, in the
alternative, granted him a hearing to assess whether it should do
so. This claim is based on his allegation that he was unlawfully
transported to the United States to secure his appearance in this
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case. See United States v. Toscanino, 500 F.2d 267, 275 (2d Cir.
1974) (holding that, in extreme circumstances, a district court
should divest itself of jurisdiction over a criminal case if the
defendant's presence was secured by the government's "deliberate,
unnecessary and unreasonable invasion of the accused's
constitutional rights").12
Fonseca's claim fails, however, because it is barred by
the appeal waiver provision in his plea agreement. Indeed, Fonseca
develops no serious argument otherwise. While he claims in his
brief that the plea agreement "contains a waiver of appeal from
the sentence, but not from the denial of the motions to dismiss
for lack of in personam jurisdiction," this argument flies in the
face of the agreement's plain text, which bars appeal of both his
"judgment and sentence." Fonseca's argument that the district
court should have declined to exercise personal jurisdiction over
him is necessarily a challenge to its "judgment" of guilt in this
case. See United States v. Baramdyka, 95 F.3d 840, 843-44 (9th
Cir. 1996) (holding that a valid waiver of the right to appeal the
12We note that the Second Circuit has since held that one of
the holdings of Toscanino -- that noncitizens "may invoke the
Fourth Amendment against searches conducted abroad by the U.S.
government" -- was abrogated by the Supreme Court in United States
v. Verdugo-Urquidez, 494 U.S. 259 (1990). See In re Terrorist
Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 167 n.5 (2d
Cir. 2008). Because we conclude that the waiver of appeal
provision in the plea agreement bars this claim, we need not delve
further into the merits of Fonseca's reliance on Toscanino.
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defendant's conviction and sentence applied to his challenge to
the district court's purported lack of personal jurisdiction over
him). Fonseca's challenge to the district court's exercise of
personal jurisdiction therefore falls within the scope of the
appeal waiver provision.
Affirmed.
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