Appeal from judgment of conviction after jury trial in the Southern District of New York, Charles L. Brieant, Jr., District Judge, finding appellant guilty of conspiring to violate the federal narcotics laws, carrying a firearm during the commission of a felony, and assaulting a federal officer.
Kaufman, Chief Judge, Smith and Timbers, Circuit Judges. Kaufman, Chief Judge (dissenting).
Appellant Rafael Navedo appeals from a judgment of conviction entered upon a jury verdict returned in the Southern District of New York on March 19, 1974 after a two day jury trial before Charles L. Brieant, Jr., District Judge, finding Navedo guilty of conspiring to violate the federal narcotics laws in violation of 21 U.S.C. § 846 (1970) (Count One); carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c) (2) (1970) (Count Two); and assaulting a federal officer in violation of 18 U.S.C. § 111 (1970) (Count Three).*fn1
Of the several claims of error raised on appeal, the only one that warrants discussion is the alleged abuse of discretion on the part of the trial judge in refusing to permit Navedo to plead guilty to the count charging a conspiracy to sell cocaine. For the reasons below, we hold on the facts of this case that there was no abuse of discretion. We affirm.
There was evidence at trial from which the jury could have found that the following occurred early in April 1973.*fn2
On April 5, Navedo met in a Bronx apartment with an undercover agent who showed Navedo $3000. This was the price agreed upon for the agent's purchase of four ounces of cocaine from Navedo. The agent asked Navedo for the cocaine. Navedo left the apartment. He returned shortly with a man whom he introduced as Roy. At Navedo's direction, Roy took out of his pocket a plastic bag of white powder. He handed it to Navedo who gave it to the agent. Navedo requested the agent to test it. The agent opened the package, looked at the contents, closed the package and put it in his pocket.*fn3 The agent in the meanwhile had given the $3000 to Roy who counted it and handed it to Navedo.
On April 17, the agent called Navedo and discussed the possible purchase by the agent of twelve ounces of cocaine from Navedo. After some dickering as to price, Navedo agreed to accept $8,500 for the twelve ounces. They arranged to meet later that evening at a social club in the Bronx to complete the sale. Upon the agent's arrival at the club, he was let in by Navedo who introduced him to a woman, Migdalia Reyes.*fn4 At Navedo's direction, Reyes left the club, drove to another location where she obtained the substance Navedo had directed her to obtain and brought it back to the club in the proverbial brown paper bag. Shortly thereafter Navedo, having agreed with the agent to complete the sale at the same Bronx apartment where the April 5 sale had taken place, left the club with a man (later identified as Roy) who drove him in a pickup truck to the location of the apartment where the sale was to be completed. As Navedo and Roy started to get out of the truck, a police officer left his surveillance car and approached Navedo who jumped back into the truck. The officer, with his gun drawn, ran to the side of the truck and shouted "Stop, Police". As the truck started to move, the officer saw Navedo pointing a gun at him. The officer fired a shot from his service revolver. Navedo dropped his gun to the pavement.*fn5 Roy accelerated the truck and drove away with Navedo. The surveilling officers were unable to follow the truck immediately. The substance that Navedo was attempting to sell to the agent was never recovered.
Navedo was arrested later that day or the next. In an interview with an Assistant United States Attorney, after being advised of his rights, Navedo stated that he had sold what he believed to be cocaine to the agent on April 5 and had negotiated a further sale to the agent on April 17.
We turn directly to the claim that the trial judge abused his discretion in refusing to permit Navedo to plead guilty to the conspiracy count prior to trial.
After having pleaded not guilty to the three counts of the indictment before Judge Brieant on October 15, 1973, Navedo was presented before Judge Brieant for a change of plea to the conspiracy count on December 11, 1973. Represented by counsel and with the consent of the government, he offered to plead guilty to Count One in satisfaction of the three count indictment. After conducting the usual inquiry regarding the voluntariness of the proposed plea, the judge then questioned Navedo directly, as required by Fed. R. Crim. P. 11, to determine whether there was a factual basis for the guilty plea.*fn6 Since Navedo's answers to the judge's questions raised doubts in the judge's mind as to whether the plea ought to be accepted, he reserved decision. He requested and obtained from the government a memorandum in support of the plea, together with copies of Navedo's pre-arraignment statements to the Assistant United States Attorney. After studying these papers, the judge on January 25, 1974 refused to accept the guilty plea on the ground that there was an insufficient factual basis to establish that Navedo had conspired with at least one other person who had specifically intended to engage in a narcotics conspiracy. The case proceeded to trial on March 18, 1974. On the following day, the jury convicted Navedo on the three counts and acquitted Reyes on the conspiracy count.
Whatever may have been established by the evidence at trial and whatever inferences such evidence may support as a matter of hindsight, our inquiry on this appeal in determining whether the trial judge abused his discretion must focus upon what was before the judge at the time he was asked to accept Navedo's guilty plea. Fed. R. Crim. P. 11; McCarthy v. United States, 394 U.S. 459, 471, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969); ...