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.
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)
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.
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 ...