post-summary judgment affidavit that contradicted sworn deposition testimony did not indicate that there was confusion at the time of the deposition or that the prior testimony was in error
How later courts described this case
- post-summary judgment affidavit that contradicted sworn deposition testimony did not indicate that there was confusion at the time of the deposition or that the prior testimony was in error
- treating a claim as waived where the appellant “neither presents developed argumentation nor provides pertinent case citations”
- claim presented without argument or case citations deemed waived on appeal
- claims not argued on appeal are waived
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the First Circuit
No. 98-2188
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS ALBERTO BERRIO-CALLEJAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Edgardo Rodriguez-Quilichini, Assistant Federal Public
Defender, with whom Joseph C. Laws, Jr., Federal Public
Defender, was on brief for appellant.
Camille Vélez-Rivé, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, were on brief for
appellee.
July 13, 2000
CYR, Senior Circuit Judge. Like many before it, this
appeal involves various violations of Federal Rule of Criminal
Procedure 11(c) & (d). 1 Nevertheless, appellant has not
demonstrated a total failure to comply with a “core” Rule 11
concern and, after assessing the errors committed by the
district court, we are satisfied that they are harmless or, in
one instance, conspicuously waived on this appeal. See, e.g.,
United States v. Cotal-Crespo, 47 F.3d 1, 4-5 (1st Cir. 1995);
United States v. Allard, 926 F.2d 1237, 1244-45 (1st Cir. 1991);
see also Fed. R. Crim. P. 11(h).
Appellant was charged by information, in the United
States District Court for the District of Puerto Rico, with
violating 21 U.S.C. § 841(a)(1) by knowingly possessing
approximately 1,692.8 grams of cocaine base, with intent to
distribute. After pleading guilty pursuant to a written plea
agreement, he was sentenced, inter alia, to a 188-month prison
term, the minimum prescribed under the applicable sentencing
guidelines.
Appellant first contends that he did not know that the
scheduled airline flight from Colombia to Spain, where he was to
1See, e.g., United States v. McDonald, 121 F.3d 7 (1st Cir.
1997); United States v. Lopez-Pineda, 55 F.3d 693, 696 (1st Cir.
1995); United States v. Cotal-Crespo, 47 F.3d 1 (1st Cir. 1995);
United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994);
United States v. Allard, 926 F.2d 1237 (1st Cir. 1991).
3
have delivered the cocaine, would land in Puerto Rico en route.
See Fed. R. Crim. P. 11(c)(1) (mandating that district court
inform defendant of “the nature of the charge to which the
[guilty] plea is offered”). Although the Rule 11 colloquy
conducted below in no sense foreclosed it, the present
contention inevitably fails since it misapprehends the
controlling law. See, e.g., United States v. McKenzie, 818 F.2d
115, 118-19 (1st Cir. 1987) (upholding conviction under §
841(a)(1) notwithstanding utter absence of evidence defendant
intended to distribute drugs within United States).
Second, the district court’s failure to address
appellant directly during important portions of the Rule 11
proceeding, though contrary to Rule 11(c), violated no “core”
Rule 11 concern under our jurisprudence.2 See Allard, 926 F.2d
at 1244-45; see also Cotal-Crespo, 47 F.3d at 4-5; cf. United
States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994).
Third, appellant points out that the district court
failed to inform him that the mandatory minimum prison term
prescribed by statute is ten years. See 21 U.S.C. § 841(a) &
(b)(1)(A); see also Fed. R. Crim. P. 11(c)(1). Furthermore, the
2
See Cotal-Crespo, 47 F.3d at 4 (identifying “core concerns”
as absence of coercion, understanding of charges, and knowledge
of consequences of guilty plea). There is no suggestion of
coercion. See also n.1 supra.
4
plea agreement itself misstated the minimum prison term as five
years, rather than ten. Nonetheless, since it is undisputed
that the 188-month prison term imposed by the district court is
the minimum required under the applicable sentencing guidelines,
these errors too must be deemed “harmless.” See United States
v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) (holding “harmless”
the district court’s failure to inform defendant of mandatory
minimum sentence, as court ultimately imposed sentence lengthier
than mandatory statutory minimum, “without any reference to the
mandatory minimum”).
Finally, before accepting the guilty plea, the district
court did not address appellant directly in explaining the
constitutional rights to remain silent and confront adverse
witnesses at any trial. See Fed. R. Crim. P. 11(c)(3). The
government responds that the omission was harmless because
appellant signed the plea agreement itself, which accurately
reflected the charges, as well as the basic constitutional
rights waived under the plea agreement.3
In the “Statement of Facts” section of his appellate
brief, appellant offers the conclusory observation that the
district court violated Rule 11 in failing to advise that he
3Contrary to the government’s characterization, however, the
three-page plea agreement makes no mention of the two
constitutional rights addressed here.
5
would have the right to confront adverse witnesses and to
refrain from testifying at any trial. Then, at the very outset
of the “Argument” section in his appellate brief, appellant
explicitly delimits his argumentation to but two issues: the
alleged violation of Rule 11(c)(1) by the district court, in
failing to inform appellant of (i) the nature of the charges to
which he was pleading guilty, and (ii) the correct mandatory
minimum sentence, see supra. Moreover, appellant neither
presents developed argumentation nor provides pertinent case
citations respecting the asserted Rule 11(c)(3) omissions.
Consequently, we deem these embryonic claims to have been waived
on appeal. See, e.g., United States v. Rosario-Peralta, 199
F.3d 552, 563 n.4 (1st Cir. 1999) (appellate court deems waived
issues presented in perfunctory manner, without developed
argumentation).
The present waiver is particularly conspicuous, in that
appellant neither suggests nor contends that he was actually
unaware of these two constitutional rights at the Rule 11
hearing. Rather, upon being asked by the district court whether
he had “discussed with [his] attorney the meaning of pleading
guilty,” and whether he was “satisfied with [his] attorney’s
representation,” defendant responded in the affirmative, without
limitation or qualification. (Emphasis added.) Finally, our
6
independent research reveals that the caselaw — concerning
whether and in what circumstances a Rule 11(c)(3) omission may
constitute reversible error — is at best opaque,4 sufficient
reason in itself to decline to reach an important question upon
which appellant provides no elucidation whatsoever.
Accordingly, the district court judgment is affirmed.
4 Compare, e.g., United States v. Tursi, 576 F.2d 396, 399
(1st Cir. 1978) (finding no reversible error in district court’s
failure to inform defendant of trial rights, but under pre-1976
version of Rule 11, which — unlike current Rule 11(c)(3) — did
not enumerate specific trial rights), and United States v.
Stead, 746 F.2d 355, 356-57 (6th Cir. 1984) (declining to vacate
guilty plea though district court admittedly failed to warn
defendant of right against self-incrimination and right to
confront witnesses), with United States v. Carter, 619 F.2d 293,
295 (2d Cir. 1980) (reversing where district court omitted
“core” requirement that defendant be advised of confrontation
rights).
7