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May 9, 1980


The opinion of the court was delivered by: PLATT


Defendant Rodolfo Rivera-Rios moves pursuant to Fed.R.Crim.P. 32(d) to withdraw a plea of guilty entered May 16, 1978 to one count of a nine-count indictment alleging air piracy and kidnapping in violation of 18 U.S.C. § 1201 and 49 U.S.C. § 1472(h), (i), (j), (k), and (l). This Court sentenced defendant on his plea to imprisonment for the remainder of his natural life, with eligibility for parole at such time as the Parole Commission may determine, pursuant to 18 U.S.C. § 4205(b)(2). He remains incarcerated at this date.

 Defendant contends that his plea was not made voluntarily, in that he relied to his detriment on certain alleged representations by an official of the State Department regarding the length of his sentence. A hearing was held on June 29 and July 2, 1979, to determine the facts surrounding defendant's decision to plead guilty. For the reasons stated below, defendant's motion is denied. *fn1"


 According to the indictment, Rodolfo Rivera-Rios, acting alone, hijacked in flight a Boeing 747 operated by Pan American Airways and diverted the plane to Cuba on August 2, 1970. He was immediately incarcerated in a Cuban jail where he spent the next three years. Following his release, Mr. Rios was arrested by Cuban authorities for an unrelated offense and sent back to prison for another three years. He was released in April, 1977.

 On September 1, 1977, the State Department opened a United States Interests Section in the Swiss Embassy in Havana, Cuba. One of the functions of the Interests Section and its staff of foreign service personnel was to arrange the repatriation of American citizens in Cuba. Sometime between September 1977 and February 1978, Mr. Rios and five other Americans who had allegedly hijacked aircraft to Cuba applied to and met with one Thomas Holladay, a consular official assigned to the Interests Section, expressing a desire to leave Cuba and seeking to have the State Department arrange for them to obtain passports. In turn, Mr. Holladay sought information from the State Department about the alleged skyjackers, and was informed that most of them faced prosecution for air piracy and kidnapping. Mr. Holladay told Mr. Rios and the others that, because of their unique situation, the State Department could arrange only for their return to the United States. Further, Mr. Holladay advised Mr. Rios and the others that they could expect to be prosecuted upon their return.

 Mr. Rios and the others nevertheless persisted in their request to leave Cuba and return to the United States. In due course, their applications for passports were approved and their interest turned to what they could expect on their return. They again approached Mr. Holladay and inquired about the possible sentences they faced if they were convicted. Mr. Holladay's response lies at the heart of the instant motion. Although the impact of his response provides the basis for Mr. Rios's legal argument here, the substance of his response is essentially undisputed. According to his testimony at the hearing, which we fully credit, Mr. Holladay responded in the following manner to the alleged skyjackers' repeated inquiries:


"We (the Interests Section personnel) are not law enforcement authorities. We can't speak for the Courts in the United States. We don't know what will happen to them because only their day in Court the judicial proceeding in the United States is going to give them that answer. They won't know the answer to that question until they had a trial." (Tr. 231) *fn2"

 Mr. Holladay further testified that Mr. Rios and the others indicated that they had heard what had happened to other alleged skyjackers who had returned to the United States to face prosecution. Some of these individuals had reportedly received sentences as light as five years, while others had even received suspended sentences. When pressed to state whether they could expect the same, Mr. Holladay responded:


"We can't give you that answer. We don't know. You might get five, you might get a suspended sentence. . . . And so there were conversations in which maybe, maybe, maybe, but there were never any promises made to those people to any of them, because we are not in a position to make promises because we have nothing to do with legal proceedings in the United States." (Tr. 232)

 In spite of this information, Mr. Rios and the others returned to the United States on March 21, 1978, and were promptly arrested by law enforcement authorities. Mr. Rios was arraigned on April 3, 1978, and soon thereafter was committed pursuant to 18 U.S.C. § 4244 for a study and report to determine his competence to stand trial. After being found competent, Mr. Rios appeared with counsel in this Court on May 16, 1978, to enter a plea of guilty to the kidnapping charge in count 9 of the eleven-count indictment returned against him.

 Prior to accepting the plea, this Court addressed Mr. Rios and advised him of the matters specified in Fed.R.Crim.P. 11(c), regarding the nature of the charge, his right to counsel throughout any proceedings, and the waiver of certain rights by his plea of guilty. Mr. Rios indicated that he understood. The Court then commenced the inquiry required by Fed.R.Crim.P. 11(d) to determine whether Mr. Rios was entering the plea voluntarily. *fn3" The exchange proceeded as follows:


THE COURT: Have any promises of any kind including any promises or suggestions as to what sentence may be imposed been made to you by your lawyer, the Court, anyone in the U.S. Attorney's Office?


THE DEFENDANT: No, nothing.


THE COURT: Has anyone in the U.S. Attorney's Office or anyone else induced a plea of guilty from you?


THE DEFENDANT: No, no one.


THE COURT: Have you been threatened or coerced in any way into pleading guilty?


THE DEFENDANT: No, nothing. (Plea Minutes, May 16, 1978, at 9-10).

 The inquiry then turned to Rios's understanding of the potential severity of his sentence.


THE COURT: Do you know what the maximum sentence which may be imposed for this offense is?




THE COURT: What is it?


THE DEFENDANT: Life in jail.


THE COURT: Yes. You may be punished for any terms of years or for life in jail. So I can impose a sentence of 100 years on you. Do you understand that?




THE COURT: (To defense counsel) Does he fully understand in your opinion the ramifications of this plea that he can be sent away for the length of time indicated?


MR. KELLY: I believe he does, your Honor. (Id., at 10-11).

 On the basis of the inquiry, the Court determined that there was a factual basis for the plea, that the plea was being entered voluntarily, and that the defendant realized the potential severity of his sentence.

 Mr. Rios appeared for sentencing on July 6, 1978. At that time, he was committed to the custody of the Attorney General for life and for a study and report pursuant to 18 U.S.C. § 4205(c), in order that the Court could obtain more detailed information on which to base Mr. Rios's ultimate sentence.

 Following completion of the study and report, Mr. Rios appeared again for sentencing on December 29, 1978. After Mr. Rios declined the Court's invitation to make a statement on his own behalf, *fn4" the Court re-imposed the life sentence, with eligibility for parole under 18 U.S.C. § 4205(b)(2). Mr. Rios responded immediately with what may best be described as an outburst, asserting for the first time that he and Mr. Holladay had made a deal which had now been breached. He stated that in return for his guilty plea and his pledge to remain silent once he returned to the United States, he would receive a maximum jail term of five years. Mr. Rios's statements are set forth in their entirety in the margin. *fn5"


 On this motion defendant asserts that he is entitled to withdraw his guilty plea on two grounds. First, he asserts that his plea was made involuntarily because it was induced by Mr. Holladay's alleged representations about the maximum severity of his likely sentence. Mr. Rios argues that he relied on those representations and would not have returned to the United States to face prosecution had he not had Mr. Holladay's assurance that he would receive no more than a five-year sentence. Second, he contends that this Court's Rule 11(d) inquiry to determine the voluntariness of the plea was inadequate to uncover Mr. Holladay's purported representations and Mr. Rios's subsequent detrimental reliance on them. We find both claims to be without merit.

 At the outset, we note that it is settled law in this Circuit that "(a) criminal defendant has no absolute right to withdraw a plea of guilty. Permission to do so rests in the sound discretion of the trial judge." United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2d Cir. 1970). Further, "in a federal trial, . . . "denial (of a motion to withdraw a guilty plea) is reversible only if it appears that there has been an abuse of discretion.' " Id. at 109-110, quoting United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957); see also, Kercheval v. United States, 274 U.S. 220, 224, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1926); United States ex rel. Rosa v. Follette, 395 F.2d 721, 726 (2d Cir. 1968). Defendant thus bears a heavy burden here to show three things: that Mr. Holladay actually made the alleged representations; that Mr. Holladay had authority to make them; and that Mr. Rios actually relied on them to his detriment.

 Mr. Holladay's testimony at the hearing as to what he actually said to Mr. Rios is virtually uncontroverted. Again and again, Mr. Holladay couched his responses to Mr. Rios's inquiries in the language of uncertainty. The closest he ever came to a prediction was expressed in these terms: You might get five, you might get a suspended sentence." Even at that, Mr. Holladay's watchword was "maybe, maybe, maybe." We find nothing disingenuous about these statements, especially in view of his repeated references to the ultimate discretion of the sentencing judge.

 Mr. Rios virtually concedes the facial innocence of Mr. Holladay's statements, but argues instead that the focus of this Court should be on what Mr. Holladay should have known about the reliability of his statements. Defendant's Memorandum of Law, at 1-3. Mr. Rios argues that Mr. Holladay surely knew or should have known that other hijackers who had returned to the United States had received more severe sentences, and thus intended that his statements induce Mr. Rios to return and plead guilty, in order to face the same severe punishment. Allegedly, then, Mr. Holladay had an incentive to make his "five-year" or "suspended sentence" guess sound like a guarantee, which Mr. Rios, unaware of the extent of Mr. Holladay's authority to make such a guarantee would rely on.

 This argument, however, is misplaced. The essential inquiry is what the words actually spoken meant to Mr. Rios, not what Mr. Holladay may have known and intended when he spoke them. Mr. Rios could not have mistaken the uncertain flavor of Mr. Holladay's statements. Any conception of an implicit "guarantee" could have arisen only in Mr. Rios's mind after he returned to the United States and could not have been rationally based on anything Mr. Holladay said. In this regard, we note that Mr. Rios initiated a meeting with Mr. Holladay about returning to the United States, not vice versa. This fact gives rise to a strong inference that Mr. Holladay acted in good faith, with no preconceived intention to misguide Mr. Rios. By the same token, it seems equally likely that Mr. Rios may have approached Mr. Holladay with the intention of securing such a guarantee and failed to do so. Only now, with the potential severity of his sentence fully realized, does he attempt to give Mr. Holladay's statements a retroactive impact beyond their plain meaning. On this basis, we here make an explicit finding that Mr. Holladay made no representation that could conceivably amount to a "guarantee", and that Mr. Rios did not understand Mr. Holladay's statements to amount to a "guarantee".

 While the above finding is dispositive of Mr. Rios's first argument, it may be helpful nonetheless to address here his failure of proof on the other two propositions which he needed to establish in order to prevail on that argument. Any question of Mr. Holladay's authority to make a guarantee to Mr. Rios is resolved by reference again to Mr. Holladay's statements and what Mr. Rios reasonably understood them to mean. As noted above, Mr. Holladay quite clearly indicated, on more than one occasion, that he could not bind either the federal prosecutors or the eventual sentencing judge. At no point in his discussions with Mr. Holladay in Cuba did Mr. Rios indicate that he understood anything to the contrary. On the facts before us, Mr. Rios could have had no reasonable basis for believing that Mr. Holladay spoke with actual or implied authority to bind the federal government to any agreement which he may have made. *fn6"

 Moreover, the law in this Circuit is that, even if Mr. Rios had reasonably believed Mr. Holladay possessed the requisite authority to consummate such an agreement, no action short of actual coercion by Mr. Holladay could invalidate Mr. Rios's plea as long as he had a generalized understanding of the consequences. Mere "allegations of advice and persuasion, not amounting to threats, by a person not an officer of the court could, even if proved, never establish the sort of compulsion that would invalidate a plea entered with full understanding of the consequences." United States v. Antoine, 434 F.2d 930, 931 (2d Cir. 1970) (emphasis added); see also United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970). Thus, Mr. Holladay's status as a party outside the realm of the prosecution or the Court renders less reasonable as a matter of law any belief Mr. Rios may have held about Mr. Holladay's authority and any reliance Mr. Rios may have placed on Mr. Holladay's statements. In other words, once Mr. Rios understood Mr. Holladay's tenuous link to the federal judicial system, his burden to show actual inducement by Mr. Holladay's statements increased to the point of requiring physical threats or coercion.

 Mr. Rios clearly has failed to demonstrate inducement of this character. Indeed, it is apparent from the record that Mr. Rios returned not only without physical coercion and threats, but fully aware that he faced certain prosecution, probable conviction (buttressed by his apparent intention to plead guilty all along), probable incarceration, and the certainty of the ultimate discretion regarding the length of his sentence resting with the sentencing judge. Viewing the facts of this case as a whole, we therefore find that Mr. Holladay's statements did not induce Mr. Rios to return to the United States, did not render his subsequent guilty plea involuntary, and will not now serve as a basis for the withdrawal of his guilty plea.


 In light of the foregoing, it is not surprising that this Court's Rule 11(d) inquiry did not turn up the purported "agreement" between Messrs. Holladay and Rios. While Mr. Rios is correct in pointing out that the "inquiry under Rule 11 is a minimal one and is not conclusive in determining whether the plea has been made voluntarily," Defendant's Memorandum of Law, at 1; see, e.g., Mayes v. Pickett, 537 F.2d 1080 (9th Cir. 1976) he is incorrect in his assertion that the inquiry here was "applied mechanically" or "by rote". Defendant's Memorandum of Law, at 5. The inquiry here was, as Mr. Rios asserts it should have been, "an inquiry into the totality of the circumstances under which the plea (was) made." Id. at 5.

 Mr. Rios was afforded repeated opportunities to apprise the Court of any arrangement bearing on his sentence. His constant refusal to do so strongly implied that no such arrangement existed. Moreover, the dialogue in open court between Mr. Rios and the Court clearly established that he was entering his plea without reservation and that he knew what was at stake. Mr. Rios stated categorically that no threats and no coercion underlay the plea, and that no promises and no suggestions had been made about the length of his sentence. Without question, Mr. Rios understood that the offense for which he then stood before the Court carried a statutory maximum of life imprisonment; the record reflects that Mr. Rios did not have to be told. Additionally, Mr. Rios's counsel stated on the record that he believed Mr. Rios fully understood the ramifications of his plea, and did not offer any information to the Court about any sentencing arrangement, which he surely would have done had he known of any. Perhaps most telling is the fact that Mr. Rios made no outburst at his initial sentencing at which he was committed for life subject to the § 4244 study and report similar to the one at his ultimate sentencing which has given rise to this motion. Mr. Rios in all probability could not have expected the study and report to have produced a significant change in his sentence.

 The inference is overwhelming, therefore, that this motion is nothing more than an act of desperation by a man finally facing the enormity of his statutorily authorized punishment for an enormously dangerous crime. Like Don Quixote tilting at windmills, Mr. Rios has thrown himself at an impossible task in the name of returning to a better time. And, like Quixote, he has lost.

 The defendant's motion to withdraw his guilty plea is hereby denied.


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